r v. CHARLIE PILURTUUT-EPOO, 2019 QCCQ 1329

R. c. Pilurtuut-Epoo 2019 QCCQ 1329 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF KUUJJUARAPIK Criminal Division No. 640-01-041861-197 DATE : March 6, 2019 Modified judgment : March 21, 2019 ______________________________________________________________________ PRESENT: THE HONOURABLE JACQUES LADOUCEUR J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v.

CHARLIE PILURTUUT-EPOO Accused ______________________________________________________________________ JUDGMENT (Modified judgment: para. 20) ______________________________________________________________________ [ 1 ] The accused is charged with the following offenses: 1. Between January 1, 2017 and August 2, 2018, in Kuujjuarapik, district of Abitibi, for a sexual purpose, did touch a part of the body of X (2002-08-[...]), a person under the age of sixteen (16) years, committing thereby the indictable offence provided by

section 151a) of the Criminal Code . 2. Between January 1, 2017 and August 2, 2018, in Kuujjuarapik, district of Abitibi, for a sexual purpose, did invite, counsel or incite Y (2003-08-[...]), Z (2002-[...]) and X (2002-[...]), persons under the age of sixteen (16) years, to touch him and a third person, committing thereby the indictable offence provided by

section 152a) of the Criminal Code . 3. Between January 1, 2017 and August 2, 2018, in Kuujjuarapik, district of Abitibi, did, by means of telecommunication, communicate with X (2002-[...]), a person who was, or who the accused believed was under the age of sixteen years, for the purpose of facilitating the commission of an offence under

section 151 or 152 , subsection 160(3) or 173(2) or

section 271, 272, 273 or 280 with respect to that person, committing thereby the indictable offence provided by

section 172.1(1) b) (2)

a) of the Criminal Code . [ 2 ] The crown opposes the release of the accused because they consider that detention is necessary for the protection or safety of the public. This written judgment follows an oral judgment ordering the release. FACTS [ 3 ] On November 19, 2018 at 10:00, police officer Desmeules received a Police Disclosure from the Inuulitsivik Child and Youth Protection Center concerning sexual assault that happened around 3 years ( sic ) ago in Kuujjuarapik.

The information was that the accused asked the youth to have sexual contacts with him in exchange of alcohol and marijuana but no contacts have been done, the youth having been able to leave. [ 4 ] The Director of Youth Protection (D.Y.P.), who met with the youths, did not retain the report and ensured their safety. [ 5 ] On February 11, 2019, the three (3) youths, who are currently aged fifteen (15) and sixteen (16) years old for both of them, were met by a police officer and made declarations. Regarding those declarations, some events occurred between January 1, 2017 and August 2, 2018.

The accused would have invite them to his house to smoke weed and offered them to drink and ask them to make things for him like “making out” ( sic ) and kissing each other’s in front of him. One of the plaintiff, Y, just went out. She said that this event occurred a “couple of years ago” and that the accused was drunk. [ 6 ] Concerning Y, she was asked when the situation happened, she answered “it happened like three (3) times”. Y said that the accused did not threat anybody and that she saw him touching X like “kind of touching her everywhere over her clothes”.

She adds that they were saying words to him like “stop” and he got scared and stopped. [ 7 ] Z was asked if the accused tried to touch one of them and she answered “not me, but probably one of my friends”.

[ 8 ] X says in her declaration that two years ago, the accused messaged her and asked if she wants to smoke weed and that she said yes, so she went to meet him at the bus, the accused being a school bus driver. They smoked weed and the accused would have given her two (2) or three (3) beers. The accused didn’t touch her the first time. She went there a second time and she says in her declaration that the accused “was touching me on my side” and “he was rubbing it and touching it [my thigh]”.

X was wearing pants. [ 9 ] When she was asked if the accused touched her more, she answered “maybe two (2) other times, on other nights, when I went to see him” and “one of those times, he would have touched her breast over her shirt.

She told him to stop and he did. [ 10 ] A warrant for arrest dated February 18, 2019 has been executed regarding the offences. [ 11 ] The accused submits a plan, regarding his interim release, saying the following: − He will live at his house ([...] in Kuujuarapik); − He is ready to respect a curfew; − He is ready to depose an amount of 500 $; − He is ready to respect the condition not to be in contact or to communicate in anyway with the alleged victims and not to go to their residences; − He is ready to go to meet with the social services concerning his alcohol consumption; − He is ready to respect any other condition considered necessary by the court.

CENTRALISATION DES DEMANDES URGENTES [ 12 ] Considering the very large territory of the district of Abitibi and the long distance between the communities, the detention centers (more particularly in Amos and St-Jérôme), the lawyers (all over the district of Abitibi and in Montreal), and the necessity to have interpreters, the Court of Québec established in 2013 a system known as Centralisation des demandes urgentes . This system has been established to permit to reduce the delays regarding bail hearing and emergencies matters in civil cases and youth protection cases.

Number of cases proceed each day mostly by visio-conference and are scheduled for a duration of 45 minutes. [ 13 ] Also, without the Centralisation des demandes urgentes , a lot of bail hearing had to proceed in the North during the regular sessions of the court, so there was not sufficient time remaining for trials and preliminary hearings. [ 14 ] During the last months (if not the last years), crown prosecutors and defence lawyers have been forewarned that too much cases regarding bail hearing are scheduled at the Centralisation des demandes urgentes when they should not be scheduled.

In some cases, it is because the crown prosecutor should have clearly release the accused under some conditions and in other cases it is because the accused has no reasonable expectative to be released but proceeds anyway. [ 15 ] Even though that there had been some improvements for short periods of time, they always come back to their bad habits and the Court is seized with bail hearings that should not be at the Centralisation des demandes urgentes . [ 16 ] The problem is that by behaving like that, both crown prosecutors and defence lawyers are jeopardizing the Centralisation des demandes urgentes .

If the situation does not change, the Court will have to put an end to that system and come back to the previous system who has a lot of disadvantages for the lawyers. More precisely, since the lawyers won’t have a specific scheduled time for the bail hearing, they will have to be ready at 9h30 on the morning on the date that they have

schedule the bail hearing and they will have to wait for their case to proceed, being available all the time before the proceeding of their case. There will be no specific period of time allowed for bail hearing and it will undoubtedly be more difficult to make the arrangement for the visio-conference. [ 17 ] The first comments of the Court are addressed to the crown regarding the goal of the bail hearing as described recently by the Supreme Court in R. v. Antic [1] : [40] A provision may not deny bail without “just cause”.

The right not to be denied bail without just cause imposes a constitutional standard that must be met for the denial of bail to be valid .

Lamer C.J. held that there is just cause to deny bail only if the denial (1) occurs in a “narrow set of circumstances” and (2) the denial of bail “is necessary to promote the proper functioning of the bail system and is not undertaken for any purpose extraneous to the bail system ” : Pearson , at p. 693; see also Morales , at p. 737; Hall , at para. 16. (Underlining and bolding by the Court) [ 18 ] For instance, too many crown prosecutors evaluate their cases at the bail hearing with underlying consideration of punishment.

Yet, this aspect of punishment is a criteria related to section 515 (10) c ) ( iv ) – “potentially lengthy term of imprisonment” – and is not related to section 515 (10) b ). In fact, the sentence and/or punishment is not a criteria that has been elaborated in R. v. Rondeau [2] and should not be taken into account when the objection is founded on protection or safety of the public.

Otherwise, it creates confusion in the analysis and as a result, there is objection to the interim release in case where there should not have such objection. [ 19 ] Again in Antic , the Supreme Court says [3] : [66] It is time to ensure that the bail provisions are applied consistently and fairly . The stakes are too high for anything less. Pre-trial custody “affects the mental, social, and physical life of the accused and his family” and may also have a “substantial impact on the result of the trial itself”: Friedland, Detention before Trial , at p. 172, quoted in Ell v.

Alberta , 2003 SCC 35 , [2003] 1 S.C.R. 857, at para. 24 ; see also Hall , at para. 59. An accused is presumed innocent and must not find it necessary to plead guilty solely to secure his or her

release, nor must an accused needlessly suffer on being released: CCLA Report, at p. 3. Courts must respect the presumption ofinnocence, “a hallowed principle lying at the very heart of criminal law. . . . [that] confirms our faith in humankind”: R. v. Oakes, (SCC), [1986] 1 S.C.R. 103, at pp. 119-20. [67] Therefore, the following principles and guidelines should be adhered to when applying the bail provisions in a contested hearing: (

a) Accused persons are constitutionally presumed innocent, and the corollary to the presumption of innocence is the constitutionalright to bail. (

b) Section 11 (

e) guarantees both the right not to be denied bail without just cause and the right to bail on reasonable terms. (

c) Save for exceptions, an unconditional release on an undertaking is the default position when granting release: s. 515(1). (

d) The ladder principle articulates the manner in which alternative forms of release are to be imposed. According to it, “release isfavoured at the earliest reasonable opportunity and, having regard to the [statutory criteria for detention], on the least onerousgrounds”: Anoussis, at para. 23. This principle must be adhered to strictly. (

e) If the Crown proposes an alternative form of release, it must show why this form is necessary. The more restrictive the form ofrelease, the greater the burden on the accused. Thus, a justice of the peace or a judge cannot impose a more restrictive form of releaseunless the Crown has shown it to be necessary having regard to the statutory criteria for detention. (

f) Each rung of the ladder must be considered individually and must be rejected before moving to a more restrictive form of release.Where the parties disagree on the form of release, it is an error of law for a justice or a judge to order a more restrictive form of releasewithout justifying the decision to reject the less onerous forms. (

g) A recognizance with sureties is one of the most onerous forms of release. A surety should not be imposed unless all the lessonerous forms of release have been considered and rejected as inappropriate. (

h) It is not necessary to impose cash bail on accused persons if they or their sureties have reasonably recoverable assets and are ableto pledge those assets to the satisfaction of the court to justify their release. A recognizance is functionally equivalent to cash bail and hasthe same coercive effect. Thus, under s. 515(2)(

d) or s. 515(2)(e), cash bail should be relied on only in exceptional circumstances inwhich release on a recognizance with sureties is unavailable. (

i) When such exceptional circumstances exist and cash bail is ordered, the amount must not be set so high that it effectivelyamounts to a detention order, which means that the amount should not be beyond the readily available means of the accused and his orher sureties. As a corollary to this, the justice or judge is under a positive obligation, when setting the amount, to inquire into the abilityof the accused to pay. The amount of cash bail must be no higher than necessary to satisfy the concern that would otherwise warrantdetention and proportionate to the means of the accused and the circumstances of the case. (

j) Terms of release imposed under s. 515(4) may “only be imposed to the extent that they are necessary” to address concernsrelated to the statutory criteria for detention and to ensure that the accused can be released.[5] They must not be imposed to change anaccused person’s behaviour or to punish an accused person. (

k) Where a bail review is applied for, the court must follow the bail review process set out in St-Cloud. (Underlining and bolding by the Court) [20] The Court note that there is some directives in

chapter “ACC-3 DM” of the Directives de la DPCP concerning bail hearingwhich are the following and that the crown prosecutor has to respect: 27. [Retenue] - Au stade de l’autorisation d’une poursuite, lorsqu’il évalue la possibilité de s’objecter à la mise en liberté provisoire parvoie judiciaire, le procureur fait preuve de retenue. Il garde à l’esprit le fait que le contrevenant doit être mis en liberté à la premièreoccasion raisonnable et aux conditions les moins contraignantes possibles selon les circonstances.

Il s’assure que ces conditions ont unlien logique avec le motif qui justifie l’objection à la mise en liberté et qu’elles peuvent être raisonnablement respectées par lecontrevenant. 28. [Contrevenant autochtone] - Lors de l’appréciation des éléments liés à la mise en liberté provisoire d'un contrevenant autochtone, leprocureur tient notamment compte du rôle et de l’implication de ce contrevenant auprès de la communauté, des conséquences que ladétention provisoire aurait sur celle-ci, des pratiques ancestrales des habitants de la région, ainsi que des réalités propres à sa situationgéographique et aux problématiques sociales présentes au sein de la communauté. 29. [Contrevenant faisant l’objet d’une surreprésentation] - Lors de l’appréciation des éléments liés à la mise en liberté provisoire, leprocureur considère la situation des contrevenants qui, en raison d’une problématique sociale, font l’objet d’une surreprésentation au seindu système de justice criminelle. (Underlining by the Court) [21] Having said that, if it is true that each accused has the constitutional right not to be denied reasonable bail without just cause, itdoesn’t mean that the accused could not renounce to a bail hearing and has the absolute right to have such hearing before the judge. [22] The defence lawyers also have to evaluate “just cause” and all the criteria at section 515 (10) of the Criminal Code to give alegal advice to his client.

The defence lawyer is not the performer of his client. He is his advisor[4]. The relation between the defencelawyer and his client is based on confidence. If the defence lawyer recommends to his client not to proceed in a bail hearing, the accused

is not obliged to follow this advice. But at that time, the link of confidence is broken. [23] Evidently, as judge Moldaver explain in Groia v. Law Society of Upper Canada[5], defence lawyer has the duty of resoluteadvocacy, particularly in the criminal law context, considering the constitutional imperatives and the accused’s right to make full answerand defence[6].

But the constitutional right to make full answer and defense and the constitutional right to be presumed innocent untilproven guilty according to the law in a fair and public hearing by an independent and impartial tribunal doesn’t mean that the defencelawyer should necessarily require a trial.

It is the same for a bail hearing even if it is founded on a constitutional right. [24] Even if they have been expressed in the case of Jordan[7], concerning the right to have a trial in a reasonable delay, thosecomments are relevant to the present situation: [41] […] participants in the justice system — police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament— are not encouraged to take preventative measures to address inefficient practices and resourcing problems.

Some courts, with thecooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay,thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken. In many cases,however, much remains to be done. […] [43] […] A criminal proceeding does not take place in a vacuum.

Each procedural step or motion that is improperly taken, or takeslonger than it should, along with each charge that should not have been laid or pursued, deprives other worthy litigants of timelyaccess to the courts. […] [116] Ultimately, all participants in the justice system must work in concert to achieve speedier trials. After all, everyone stands tobenefit from these efforts. As Sharpe J.A. wrote in R. v. Omar, 2007 ONCA 117 , 84 O.R. (3d) 493: The judicial system, like all other public institutions, has limited resources at its disposal, as do the litigants and legal aid. . . .

It is in theinterest of all constituencies — those accused of crimes, the police, Crown counsel, defence counsel, and judges both at trial and onappeal — to make the most of the limited resources at our disposal. [para. 32] […] [137] […] Real change will require the efforts and coordination of all participants in the criminal justice system. [138] […] For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating withCrown counsel when appropriate and, like Crown counsel, using court time efficiently. […] (Underlining and bolding by the Court) (Omitted reference) ANALYSIS [25] The accused has some previous convictions.

In 2013, he committed an assault in a case of domestic violence for which he had adischarge with the condition to make a donation of 200 $. On December 28, 2015, he had a suspended sentence with a probation oftwelve (12) months and a donation of 400 $ for domestic violence against the same victim. [26] After the execution of the warrant of arrest in the present case, he pleaded guilty to offence related again to domestic violenceon the same victim and was sentenced to one day of imprisonment taking to account the previous custody considered as seventy-six (76)days.

Before that, he has been sentenced to one day of jail on June 6, 2018, with a probation taking into account four (4) days of previouscustody for an infraction of illegal presence in dwelling house. [27] As mentioned at the hearing, the Court has difficulties to understand why that case was set for a bail hearing, considering theevidence. [28] What is the most surprising for the Court is that the crown didn’t want to negotiate any bail conditions with the defence and so,no discussion has been held between the parties. For the Court, it is clearly a case where the accused should have been released withconditions.

If the Court is wrong, at least some efforts should have been done to try to negotiate suitable conditions and maybe avoid tohave a bail hearing. [29] It is necessary to distinguish the decision to oppose the release of the accused at the moment of his appearance in front of thepresiding justice of the peace (JPM) and the decision to maintain this choice until the bail hearing.

Between those two moments, there isa period of time during which the crown should discuss with the defense lawyer, in almost all the cases - including this one -, to conformthemselves to the “ladder principle” of Antic. [30] In fact, the Court has to say that it is desirable that in the future “the efforts and coordination of all participants in the “criminaljustice system” will permit to use “court time efficiently” and avoid to hold bail hearings who have no chance of success for the defenceor the crown. It is the only way that the Centralisation des demandes urgentes could survive.

FOR THOSE MOTIVES, THE COURT:

[ 31 ] ORDERS that the accused be release during the procedures with the following conditions: − Deposit an amount of 500 $; − That the accused attend court on March 25th, 2019 at 2:00 p.m. in the courthouse of Whapmagoostui and that he attends court thereafter as required by the court, in order to be dealt with according to law, and, in addition, that he comply with the following conditions : − Keep the peace and be of good behaviour and be present as required by the Court; − Reside at [...], Kuujjuarapik (Québec) [...]; − Be at my residential address between 9:00 p.m. and 7:00 a.m.

a) except for work purposes;

b) except for a medical emergency;

c) except for traditionnal activities; − Notify the Court of any change of address beforehand and in writing; − Not be at or go to the following address: X (2002-[...]), Z (2002-[...]) and Y (2003-[...]) or any other place where the complainants may live, regardless of the address or might be; − Not communicate or attempt to communicate in any way with X (2002-[...]), Z (2002-[...]) and Y (2003-08-03); − Not be in the presence of people under the age of 16 years old, except in the presence of a third person who is an adult, except for your job with the consent of your boss, except for your children; − Not to refer to X (2002-[...]), Z (2002-[...]) and Y (2003-[...]) on any social media − Not drink any alcoholic beverages or have them in my possession; − Not possess or use narcotics or drugs, except in accordance with a validly obtained medical prescription; − Advise your employer Kativik Ilisarniliriniq of the pending accusations regarding you, by giving them a copy of the warrant for arrest with detailed charges in a delay of 48 hours of arrival in the community; − Obtain a written confirmation that you gave them a copy of warrant and depose a copy of that document to the police of Kuujjuarapik in delay of 48 hours after reception of document. __________________________________ JACQUES LADOUCEUR J.C.Q.

M e Audrey-Anne Veillette-Dion For the prosecution M e Francis Germain For the accused Date of the hearing: March 6, 2019