R. v. Ugyuk, 2020 NUCJ 27

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ugyuk, 2020 NUCJ 27 Date: 2020 0713 Docket: 25-19-45, 25-19-76, 25-19-77, 25-20-26, 25-20-42, 25-20-43 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Tyson Ugyuk ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): B. Flight Counsel (Accused): S. Paddock Location Heard: Iqaluit, Nunavut Date Heard: June 29, 2020 Matters: Application for bail review pursuant to Criminal Code of Canada, RSC 1985, c C-46, s. 520 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This an application by Tyson Ugyuk for a bail review pursuant to s. 520 of the Criminal Code . [ 2 ] Mr. Ugyuk has been in custody since April 17, 2020. He had a show cause hearing on April 22, 2020 and was denied bail on the grounds that his detention was necessary for the protection or safety of the public, including any substantial likelihood that he will reoffend or interfere with the administration of justice if released. This is commonly referred to as the secondary grounds for detention. [ 3 ] The bail review application was heard on June 29, 2020. II. OUTSTANDING CHARGES [ 4 ] Mr.

Ugyuk currently has the following charges pending. A. June 24, 2019 [ 5 ] On this date RCMP responded to a complaint involving Mr. Ugyuk. He was located outside the local Coop Store. As the police walked towards him with the intention of arresting him, Mr. Ugyuk walked away from them at a quick pace. He was told to stop and that he was under arrest but he continued to walk away. Within what seems to be a few minutes the police were able to effect an arrest. As a result of the initial complaint and his failure to comply with the police direction upon arrest Mr. Ugyuk was charged with 5 offences.

Following his arrest he was released by a Justice of the Peace on a Recognizance. [ 6 ] At some point between July 15 and August 14, 2019, Mr. Ugyuk was in custody. The charges that are currently before the court do not relate to allegations during that period of time. [ 7 ] Mr. Ugyuk appeared in the Nunavut Court of Justice on August 14, 2019. At that time he pleaded guilty to a charge of resisting arrest arising from the allegations of June 24, 2019. The balance of the charges were either withdrawn or a stay of proceedings entered by the Crown.

The sentencing hearing was put over to another date and he has yet to be sentenced on that charge. [ 8 ] During the August 14, 2019 court appearance the Recognizance was varied, following which the conditions were to: • keep the peace and be of good behaviour; and • leave the presence of his father, George, if asked by the RCMP or by George and to stay away for 24 hours. B. October 29, 2019

[ 9 ] On this date the RCMP received a phone call from Mr. Ugyuk’s mother. She told police that her son had been yelling at, scaring, and threatening her and a child who lives in the home. She said that Mr. Ugyuk had damaged things by slamming cupboard doors and taking food. Mr. Ugyuk was not in the home at the time his mother called the police. Approximately 15 minutes after the initial phone call, Mr. Ugyuk’s mother called the police again as Mr. Ugyuk had returned to the home. He could be heard in the background swearing at his mother and asking why she had called the police. [ 10 ] Mr.

Ugyuk was charged with mischief, breach of probation, and breach of undertaking in relation to this incident. [ 11 ] Following his arrest on these charges Mr. Ugyuk was released on an Undertaking given to a peace officer to have no contact with his parents, George or Linda, and not to go to their home. He was also placed on a condition to not drink. C. November 8, 2019 [ 12 ] It is alleged that Mr. Ugyuk, along with a youth, broke into the local hotel and stole a safe.

He is charged with break and enter with intent to commit an indictable offence, theft, breach of probation and breach of the August 14, 2019 Recognizance by failing to keep the peace and be of good behaviour. [ 13 ] Mr. Ugyuk was released on an Undertaking given to a peace officer with conditions that he not communicate with the co-accused and that he not attend at the hotel. D. February 12, 2020 [ 14 ] On February 12, 2020, RCMP received a call from Mr. Ugyuk’s mother stating that he was at his parents’ house and they did not want him there. Mr.

Ugyuk was charged with breach of the October 29 th , 2019 Undertaking to not go to his parents’ house and with breach of the August 14, 2019 Recognizance for failing to keep the peace and be of good behaviour. [ 15 ] These charges arise in the context of allegations that Mr. Ugyuk was going to his parents’ house daily and causing problems by being aggressive and disrespectful. It is alleged that he had been warned by the police three days before the February 12, 2020 charges not to go to his parents’ house. [ 16 ] Mr. Ugyuk was issued an Appearance Notice in relation to these charges.

It is submitted that following his arrest on February 12 th , the RCMP spent time with Mr. Ugyuk to review all of the conditions he was bound by pursuant to both the August 14, 2019 Recognizance, the October 29, 2019 Undertaking and the November 8, 2019 Undertaking. E. April 5, 2020 [ 17 ] On April 5, 2020, at approximately 2:15 am, RCMP received a complaint that Mr. Ugyuk was intoxicated, trying to kick in a door, and looking for a fight. Mr. Ugyuk was located on the side of the road and arrested. He did not appear intoxicated.

He was charged with two counts of breach of Undertaking for drinking and two counts of breach of Recognizance for failing to keep the peace and be of good behaviour. He was released on an Appearance Notice. F. April 17, 2020 [ 18 ] It is alleged that on April 17, 2020, Mr. Ugyuk was intoxicated and in the furnace room of an apartment complex, banging on the wall and disturbing occupants of the building.

[ 19 ] He was arrested, charged with breaching his October 29, 2019 Undertaking by drinking and with breach of the August 14, 2019 Recognizance for failing to keep the peace and be of good behaviour. He was remanded for a show cause hearing. While in custody, it is alleged he assaulted another prisoner. He has been charged with assault as a result of that allegation. [ 20 ] For the balance of this decision I will refer to the various Recognizances and Undertakings collectively as Release Documents. III.

GROUNDS FOR REVIEW [ 21 ] It is submitted that the Justice of the Peace erred in law in the following: • she misapplied the test for detention on the secondary grounds; • she did not consider and apply the ladder principle; and • alternatively, the reasons for detention are insufficient and consequently, appellate review is not possible. IV. THE DECISION UNDER REVIEW [ 22 ] At the commencement of the bail hearing it was acknowledged that Mr. Ugyuk bore the onus of satisfying the court that he ought to be released, as he had been released on conditions which it was alleged he breached.

The Crown read in the allegations for each of the incidents, as summarized earlier in this decision. [ 23 ] Mr. Ugyuk’s criminal record was provided to the court.

It consists of the following convictions: Youth convictions: 2007 Mischief 6 months probation 2008 Assault (3 convictions) Breach of undertaking Mischief Breach of youth court disposition Failure to attend court 14 months probation on each charge, concurrent Adult convictions: 2009 Mischief Theft under $5000 Breach of probation 1 day, with credit for 8 months pre-trial custody, 36 months probation 2010 Assault Breach of probation 1 day time served 2013 Break and enter (2 convictions) 90 days plus 90 days pre-trial custody, 2 years probation 2015 Sexual assault 3 years, 2.5 years probation 2018 Breach of probation 30 days, 18 months probation

[ 24 ] The Crown was opposed to Mr. Ugyuk’s release on the secondary grounds, arguing that based on the record and the number of outstanding charges there was a substantial likelihood Mr. Ugyuk would commit further offences if released (Transcript, pages 23-24). [ 25 ] The Defence submitted that while it might be reasonable to conclude Mr. Ugyuk would likely commit further offences if released, it was also reasonable to conclude that those offences were likely to be non-violent breaches of court orders and that it was not necessary to detain Mr.

Ugyuk for the safety or protection of the public (Transcript, pages 26-27). [ 26 ] In her decision the Justice of the Peace acknowledged that most of Mr. Ugyuk’s outstanding charges were breaches of Release Documents or his Probation Order. She summarized the positions of both Crown and Defence. She stated that she was satisfied that Mr. Ugyuk should not be released from custody because his ability to follow court orders was concerning. The decision was brief and was focused on the likelihood of Mr. Ugyuk following bail conditions.

The Justice of the Peace did not address the risk of danger to the public that might result if Mr. Ugyuk were released. V. STANDARD OF REVIEW [ 27 ] A bail review hearing is a hybrid process; it is neither a hearing de novo nor is it an appeal. The reviewing court owes deference to the decision under review but must also recognize that initial bail hearings are often made on short notice, with incomplete information, and without the benefit of counsel.

A reviewing judge should exercise his discretion to review a bail decision where: • there is a material and relevant change in the circumstances; • there is an error of law in the original decision; or • the original decision is clearly inappropriate. ( R v St-Cloud , 2015 SCC 27 ; R v Zora , 2020 SCC 14 at para 64 ) [ 28 ] In my view, this court should undertake a review of the initial bail decision for the following reasons: • while it is clear that the Justice of the Peace was satisfied that there was a likelihood Mr.

Ugyuk would reoffend, it is not possible to determine from the reasons if she considered whether such reoffending would pose a risk to public safety, as this issue was not discussed by her. As such, the decision is not amenable to review as there are insufficient reasons provided ( R v Sheppard , 2002 SCC 26 ); and • the bail court did not have the benefit of the SCC decision in Zora , which clarifies the correct approach to bail. VI. ANALYSIS A. Legislation and jurisprudence [ 29 ] The Supreme Court of Canada in Zora provided guidance on the approach to be taken to pre-trial release and detention.

The principles to be taken from Zora are: • pre-trial release is focused on risk management. Punishment plays no role in the decision of whether or not to detain an accused or in the setting of conditions on pre-trial release; • restraint must be exercised in the decision to detain an accused and in the setting of conditions on those released; • there must be a nexus between the risk to be managed and the bail conditions imposed on an accused;

• the conditions imposed must be proportional to the risk to be managed; • bail conditions must be individualized in response to the allegations and the circumstances of the accused; • bail conditions should be responsive to changes in circumstances; they should be reviewed and varied to ensure they address a particular risk, are the least onerous possible, and are such that it is reasonable to expect the accused to be able to comply with them; and • bail conditions should be clear and precise so that an accused is under no misunderstanding as to what is required of him. [ 30 ] Section 515(10) of the Criminal Code sets out the three grounds upon which pre-trial detention of an accused may be justified.

The secondary ground is: where the detention is necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all of the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice… [ 31 ] In R v Abdel-Rahman , 2010 BCSC 189 at para 23 , the court set out the approach to assessing whether detention of an accused is necessary on the secondary ground. The court should consider:

a) First, whether there is a risk that the accused will either commit an offence, or will interfere with the administration of justice, if he is released;

b) Second, whether this risk is of such magnitude that it amounts to a “substantial likelihood”;

c) Third, whether the said risk would constitute a danger to public safety (in general, or to a specific victim or witness) if the accused is released; and

d) Fourth, whether the detention of the accused is “necessary,” because the identified danger to public safety cannot be prevented or reduced to an acceptable level by bail conditions (such as reporting to authorities, curfew, no-contact, mobility restrictions, sureties or cash bail). B. Likelihood of reoffending [ 32 ] Mr. Ugyuk was arrested and released on 5 occasions before being held for a show cause hearing.

Undoubtedly, the decision to repeatedly release him was based to some extent on the nature of the allegations and charges, many of which might better be described as nuisance behaviour rather than dangerous behaviour. [ 33 ] The number of times Mr. Ugyuk has been arrested and released indicates that he is likely to re-offend if released, a conclusion shared by the Justice of the Peace. C.

Nature of the risk [ 34 ] The analysis must go further however and must consider whether the risk poses a danger to public safety and whether the risk can be mitigated to an acceptable level by the imposition of appropriate conditions upon release. [ 35 ] In my view, there are two areas of risk in relation to Mr. Ugyuk. One is in relation to his family. There are allegations of him having contact with his family when he is not supposed to and when they do not want to have contact. The parents have told the police that they are afraid on Mr. Ugyuk. He is often disruptive and aggressive when in their home.

It appears that they are prepared to call the police when they want him removed. [ 36 ] The original June 24, 2019 Release Document had broader no-contact provisions than the August 14, 2019 amended Release

Document. It is submitted that the October 29, 2019 charge of breaching his release conditions by having contact with his mother cannot stand, as at that time he was not on no-contact conditions in relation to her. A no-contact condition in relation to his mother was added following the October 29, 2019 allegations. [ 37 ] Mr. Ugyuk was again charged on February 12, 2020, with having contact with his parents when he should not. [ 38 ] I am unable to conclude that Mr. Ugyuk’s contact with his family in breach of his conditions establishes a pattern of unwanted contact.

I am unable to make such a conclusion because once his contact with his family was restricted in June of 2019, Mr. Ugyuk accrued two charges of breaching the non-contact provision over a period of a year. In my view, this cannot be said to be a pattern of behaviour. [ 39 ] Although Mr. Ugyuk did not attest in his affidavit to any misunderstanding regarding the conditions he was on, counsel for Mr. Ugyuk advises that there may have been some confusion regarding contact between Mr. Ugyuk and his family. Counsel for Mr.

Ugyuk has submitted that following his February, 2020 arrest, the RCMP took the time to carefully review with Mr. Ugyuk all of the release conditions he was bound by. At this point, he would have been subject to three Release Documents, those of August 14, 2019; October 29, 2019; and November 8, 2019. [ 40 ] If one of the goals is to have clear, easily understood bail conditions, a multiplicity of release documents is to be avoided.

If an accused accrues additional charges after his first release and the decision is made to release him again with additional or varied conditions, the best approach is to vacate the earlier release documents and put all charges and conditions on one document. This makes the conditions easier to understand for everyone, and especially so for the accused. It also prevents multiple charges for breaching release conditions arising from one incident. For example, an accused may have a no-contact condition on one release document.

If he breaches that no-contact provision he might be charged not only with that breach but also with failing to keep the peace and be of good behaviour in relation to other release documents. This is contrary to the principles set out in Zora . However, as will be discussed, vacating prior Release Orders is not an option available to peace officers. [ 41 ] One of the goals of the bail system is to ensure that accused are released at the earliest opportunity and do not remain in custody awaiting an appearance before a Justice of the Peace when there is no need to do so.

It is for this reason that the bail provisions of the Criminal Code were amended in 1994 to permit peace officers (for the purposes of this discussion I make no differentiation between peace officers and officers in charge) to release accused persons on conditions. This ensures that the necessary conditions to protect the public are in place and that accused persons are released as soon as possible. [ 42 ] Peace officers may release accused persons on conditions pursuant to either s. 499 or 503 of the Criminal Code .

If an accused is released by a peace officer, both the accused and the crown have the right to make an application to have the release document replaced by one issued by a Justice of the Peace (s. 499 (3) and (4) and s. 503 (2.2) and (2.3)).

The Criminal Code does not provide a mechanism whereby peace officers can vacate prior release documents. [ 43 ] Accordingly, where an accused who has been charged and released on conditions by a peace officer is again arrested and charged, the peace officer has the following options: • release with no additional conditions, just a document compelling attendance at court; • release on a separate Release Document with additional conditions; • bring the matter before a Justice of the Peace so the existing Release document can be vacated and one Release Document encompassing all charges be issued; or • bring the matter before a Justice of the Peace for a contested bail hearing. [ 44 ] In my view the police exercised their discretion in a reasonable manner when they dealt with Mr.

Ugyuk. The conditions he was released on in November were directed at minimizing risk in relation to the specific break and enter he was accused of committing. His subsequent releases in February and April with nothing more than a date for a court appearance reflected the minor nature of the allegations on those dates. Unfortunately, they simply did not have the option of consolidating all of the conditions on the three Release

Documents into one document. The multiplicity of release documents may have resulted in some confusion. [ 45 ] The other area of risk in relation to Mr. Ugyuk is his conduct in the community. The allegations in April are offences more in the nature of a nuisance than criminal behaviour. They do not rise to the level of dangerousness and do not raise concerns regarding public safety. D. Other considerations [ 46 ] Recent amendments to the Criminal Code specifically direct the court to give particular attention to the circumstances of Indigenous and vulnerable accused when setting bail conditions.

Section 493.2 states: 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. [ 47 ] The court in Zora recognized the reality of many accused who find themselves in bail court, stating at paragraph 79: A third reality of bail is that onerous conditions disproportionately impact vulnerable and marginalized populations (CCLA Report at pp. 72-79). Those living in poverty or with addictions or mental illnesses often struggle to meet conditions by which they cannot reasonably abide.

Indigenous people, overrepresented in the criminal justice system, are also disproportionately affected by unnecessary and unreasonable bail conditions and resulting breach charges. [ 48 ] Mr. Ugyuk suffers from many of the disadvantages recognized by the court in Zora . He has a grade 5 education. He is unemployed and receives disability income, although the nature of the disability has not been disclosed to the court. He suffers from addiction issues. There is a suggestion that there may be mental health issues.

His estrangement from his family has left him homeless in a remote community that has no housing options available. For the past year he has been living in a shack which, I am advised, is more akin to a crate and lacks basic necessities such as running water and cooking facilities. The circumstances of Mr. Ugyuk reflect social issues that the criminal justice system is ill equipped to respond to. E. Mitigation of the risk [ 49 ] I am satisfied that any risk to public safety that Mr. Ugyuk poses can be mitigated to an acceptable level through appropriate release conditions.

Those conditions will give his parents control over contact so as to ensure that they have a peaceful home for their family. They will prohibit contact with witnesses in relation to the more serious of the charges. V. CONCLUSION [ 50 ] Mr. Ugyuk will be released on the following conditions:

a. to attend court as directed; b. to have no contact with his parents, George Ugyuk and Linda Ugyuk, and not to go to their house, #41, Taloyoak, unless the RCMP tell him he can; c. to have no contact with Darren Nulliayuk or Tim Napacheekadla; and d. not to go to the Boothia Inn, Taloyoak. Dated at the City of Iqaluit this 13th day of July, 2020 ___________________ Justice S. Cooper Nunavut Court of Justice