r v. WILLIE KONEAK, 2019 QCCQ 3851

R. c. Koneak 2019 QCCQ 3851 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF VAL-D’OR Criminal Division No. 635-01-018152-190 DATE: June 18, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE JACQUES LADOUCEUR J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

WILLIE KONEAK Accused ______________________________________________________________________ JUDGMENT [1] ______________________________________________________________________ [26] [As] is the case elsewhere in our criminal justice system, Indigenous individuals are overrepresented in the remand population, accounting for approximately one quarter of all adult admissions: Statistics Canada, Trends in the use of remand in Canada, 2004/2005 to 2014/2015. [27] As this Court has recognized, the experience of pre-trial detention can have serious detrimental impacts on an accused person’s ability to raise a defence: see R. v.

Hall, 2002 SCC 64 , [2002] 3 S.C.R. 309 , at para. 59 . It also comes at a significant cost in terms of their loss of liberty, the impact on their mental and physical well-being and on their families, and the loss of their livelihoods: Friedland, at p. 172; Ell v. Alberta, 2003 SCC 35 , [2003] 1 S.C.R. 857 , at para. 24 ; Antic, at para. 66. - R c. Myers, 2019 CSC 18 [ 1 ] The accused, an Inuit from the community of Kuujjuaq, is charged of the following infractions : 1. On or about February 21, 2019, in Kuujjuaq, district of Abitibi, did commit a sexual assault on J.

G., committing thereby the indictable offence provided by

section 271a) of the Criminal Code . 2. On or about February 21, 2019, in Kuujjuaq, district of Abitibi, did knowingly utter a threat to cause death or bodily harm to J. G., committing thereby the indictable offence provided by

section 264.1(1) a) (2)

a) of the Criminal Code . 3. On or about May 31, 2019, in Kuujjuaq, district of Abitibi, did commit a sexual assault on J. G., committing thereby the indictable offence provided by

section 271a) of the Criminal Code . [ 2 ] He has been arrested on May 31, 2019 and had his bail hearing on June 17. So, he has been detained 17 days before his bail hearing. Such a delay is the norm when an Inuit is arrested and detained until his bail hearing. In fact, section 516(1) Cr.c. concerning the adjournment for no more than 3 days seems to have no application for those Inuit accused. [ 3 ] There is a passive acceptation of that situation even if all the interveners of the judicial system and the government are conscious that this is how it proceeds for many years now. QUESTION [ 4 ] Should the accused be released and if yes, under which conditions?

ANALYSIS [5] At the hearing, the Crown prosecutor deposed the police report and the previous convictions of the accused. The accusedpresented his plan for interim release and he also testified. [6] The objection of the Crown was based on subsection 515(10)

b) Cr.c. At the hearing, I decided to release the accusedconsidering that, taking into account all the factors of Rondeau, (QC CA), [1996] JQ no. 1090, the detention of theaccused was not necessary for the protection or safety of the public. [7] As previously said, the accused has been detained for 17 days before his bail hearing.

Here are the details of what happenedduring that time: • Arrested on May 31, he appeared by phone the same day. • He has been detained for about 7 days at the police station in Kuujjuaq. • He has been transferred by plane over the night to Montréal and then to St-Jérôme detention center. A strip search has been done atthat place. • One day later, he has been transferred to Amos detention center.

A strip search has been done at that place too. • He appeared before a justice of the peace on June 7 and the case was adjourned on June 10, then on June 11 and finally on June 17for the bail hearing. [8] That situation regarding Inuit detainees has been the rule for many years and is a systemic problem. It has been criticized a lotof times. Among others, Barreau du Québec, Cour du Québec and Protecteur du Citoyen complained about the situation. To this day,nothing has been done to solve the problem. [9] The Court has no control on what happens before the appearance of the accused in Amos.

And, after this appearance, theinappropriate use of the Centralisation des urgences by the Crown and the defence in certain circumstances - which I already discussedin other files – and the lack of judges in Abitibi to respond to the needs of the North[2], are some of the causes of those delays. [10] The Québec Court of Appeal, in Madore c. R., 2016 QCCA 1469, said the following: Les articles 515 et 516 C.cr., qui confirment le caractère

sommaire du processus de mise en liberté provisoire, permettent d’ailleurs demettre en œuvre ces garanties fondamentales [prévues aux articles 7, 9 et 11e) de la Charte canadienne] et doivent être appliqués dans lerespect de celles-ci. Une enquête sur mise en liberté qui s’éternise n’est en principe pas conforme à ces dispositions et, comme l’écrit laCour suprême dans R. c.

St-Cloud : « Ce choix conscient de tenir rapidement une enquête sur la mise en liberté repose sur l’importanceque notre société accorde à la présomption d’innocence et au droit à la liberté des individus, même lorsqu’ils sont accusés d’uneinfraction criminelle sérieuse. En outre, vu le cadre tracé par les juges majoritaires de la Cour suprême dans l’arrêt R. c.

Jordan, on ne peut plus douter que le ministèrepublic, mais aussi la défense et les cours de justice elles-mêmes ont l’obligation de faire le nécessaire pour qu’un accusé soit jugérapidement, les diverses étapes conduisant au procès et à la conclusion de celui-ci devant être menées avec diligence, et ce, au bénéficede tous les intéressés, incluant la société. [11] Previously, the Ontario Superior Court said, in R. c. Villota, (2002) (ON SC), 163 C.C.C. (3d) 507: While resource allocation is undoubtedly an instrumental factor in the provision of bail hearings with expedition, it is by no means theonly factor.

Equally important is the conduct of the show cause hearing itself in terms of the nature of the participation by thoseinvolved. In any event, where constitutional rights are at stake, pleading lack of resources is, as a general rule, no answer to governmentimperiling such rights: Regina v. Peel Regional Police Service, Chief of Police, (2000), (ON SC), 149 C.C.C. (3d)356 (Ont.

S.C.J.) at 394-6.” [12] Authors Steven PENNEY, Vincenzo RONDINELLI and James STRIBOPOULOS in Criminal Procedure in Canada, 2e Éd.,LexisNexis, 2018, at p. 417 wrote the following: The discretion to adjourn a bail hearing for up to three clear days without an accused person’s consent, when combined with heavycaseloads in some jurisdictions, can lead to alarming delays before a bail hearing is held.

Delays affording those arrested a bail hearingmay give rise to constitutional concerns. (…) Given the fundamental constitutional interests at stake, it is incumbent on governments to provide adequate resources (includingcourtrooms, justices, prosecutors, administrative and security staff) to ensure that the Code’s promise of a bail hearing within 24 hours ofarrest is realized.

Section 9 and 11(

e) of the Charter are violated when an accused is forced to languish in custody awaiting a bail hearingdue to inadequate resources. [13] Also, recently, the Alberta Court of Appeal in R. v. Reilly, 2019 ABCA 212 reversed a decision to stay the proceedings renderedby the Provincial Court. The stay of proceedings has been ordered because the accused appeared before the justice of the peace 36 hoursafter his arrest instead of the maximum delay of 24 hours of section 503(1)

a) C.cr.

[14] The Court of Appeal overturned the decision because, among others, a new bail hearing system has been organized over the pastyears by the government to try to improve the situation regarding the appearance of accused in a delay respecting the 24 hoursrequirement and also because the remedy chosen - stay of proceedings – was unreasonable in that specific case. [15] As previously said, the problem regarding the delays for appearance of the Inuit detainees and the holding of their bail hearing isa systemic problem.

In the document Profil correctionnel 2015-2016 : les Autochtones confiés aux Services correctionnels[3] publishedin 2018 by the Ministère de la Sécurité publique du Québec, we can read the following informations (p.15, 19 and 22): • In 2015-2016, the average lenght of previous custody for an Inuit was 41 days comparatively to a median of 27 days for otherNations, including non Aboriginal. • The reason to release an Inuit detainee from custody that is related to a promise, a recognizance or a bail is equal to 26%.

That islowest rate for all the Nations, including non Aboriginal. • The percentage of Inuit who are incarcerated and are not transferred from an establishment to another is 21%, which is largelyunder the percentage for other detainees which vary from 60 to 76%. And the percentage of Inuit who are transferred four (4) times ormore is 19%, which is also well over the percentage for other detainees which is from 4% (non Aboriginal) to 12% (Crees). [16] Here, as a justice of the peace acting under sections 515 seq.

Cr.C., I am not a court of competent jurisdiction to determine ifsome constitutional rights of the accused have been infringed (R. c. Menard, 2008 BCCA 521) and if so, what would be the appropriateremedy.

Nor did a demand in that sense has been made by the defence (knowing I do not have the powers to render a Charter remedy). [17] On the other hand, as a justice of the peace, I am a judge who is part of the judicial system and, as the Supreme Court of Canadasaid: “following the enactment of the Canadian Charter, [judges] have become one of the foremost defenders of individual freedoms andhuman rights and guardians of the values it embodies.” (Therrien (Re), 2001 SCC 35 , [2001] 2 SCR 3, para.108) [18] That is the reason why I will reserve the right of the accused to present to the competent jurisdiction a demand to declare that hisconstitutional rights have been infringed and to obtain the appropriate remedy. [19] Even if I know that reserving the rights of the accused is mainly symbolic, I add that the first goal here is to denounce asituation that last for too many years, hoping that changes will be made to correct such an injustice.

FOR THOSE MOTIVES, THE COURT: [20] ORDER that the accused be released on entering a recognizance with the following conditions: • Deposit of an amount of 1,000.00$; • Keep the peace and be of good behaviour and be present as required by the Court; • Reside at House [...] Kuujjuaq (Québec) [...]; • Be at his residential address between 9:30 p.m. and 6:00 a.m.; − except for work purposes, medical emergency for himself or his common law spouse, or traditional activities; • Not change address without the prior authorization of the Court; • Notify the Court of any change of employment beforehand and in writing; • Not be at or go to the following address : House [...], Kuujjuaq (J.

G.’s residence) or any other place where the complainant maylive, regardless of the address; • Leave immediately any public place where J. G. may be, except the [Company A] when working; • Not communicate or attempt to communicate in any way with J. G.; • Not to harass, molest or threaten J.

G.; • Go the police force station of Kuujjuaq between 9:00 a.m. and 6:00 p.m. and sign the register, once a week, on Friday, startingJune 21, 2019; • Forbidden to possess or carry any firearms or weapons or ammunition, except for traditional activities and bring them to the policestation within a delay of 24 hours from your arrival in Kuujuaq; • Not drink alcoholic beverages or have them in his possession; • Not be in restaurant that have a liquor permit, except to eat a meal without alcohol; • Not be in bars, discotheques or other licenses premises; • Make an appointment with the Justice Committee within 24 workable hours from return in Kuujjuaq and each time they ask him todo so and provide written proof thereof at the police station every week;

• Follow counsel regarding alcohol problem; • Attend AA meeting at least once a week, if such AA meetings are available, and bring proof of attendance at the police station every week. [ 21 ] RESERVE the rights of the accused to present to a court of competent jurisdiction a demand to declare that any of his constitutional rights have been infringed or denied and to obtain such remedy that the court considers appropriate and just in the circumstances. __________________________________ JACQUES LADOUCEUR J.C.Q. M e Joanie Marion For the prosecution M e Jacques Stuart For the accused Date of the hearing: June 17, 2019