R. v. Akulukjuk, 2014 NUCJ 15

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Akulukjuk, 2014 NUCJ 15 Date: 20140424 Docket: 8-13-492 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Aaron Akulukjuk ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): P. Bychok Counsel (Accused): T. Fairchild Location Heard: Iqaluit, Nunavut Date Heard: March 6-7, 2014 Matters: ss. 331.1, 129 (a), 264.1(1) (a), 733.1(1) and 145(3) of the Criminal Code of Canada, RSC 1985, c C-46 . REASONS FOR JUDGMENT (Delivered Orally) (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] Mr. Akulukjuk is charged with a number of offences arising July 19 and July 21, 2013. I heard the evidence on the charges yesterday. I will address each charge chronologically. II. CONSIDERATION OF CHARGES A. Count #1: Theft of a motor vehicle [ 2 ] Mr. Akulukjuk is charged with theft of a motor vehicle arising July 19th, 2013. There is no dispute that a vehicle was stolen from the Hanson garage compound the night before July 19th, 2013, or perhaps a day or two earlier. The issue is whether Mr.

Akulukjuk is the person who took the vehicle. [ 3 ] The vehicle was noticed missing the morning of July 19th when employees showed up for work. Upon receiving certain information, a number of employees went to the area of Upper Base where they saw the vehicle. The seat on the driver’s side was down flat and there was a male in the seat, sleeping. [ 4 ] Identification of the male came from two witnesses. [ 5 ] Mike Wilkins approached the vehicle and knocked on the driver’s side door to wake the male up. When the male awoke and got out of the vehicle Mr. Wilkins had a brief discussion with him. Mr.

Wilkins had a radio and a cell phone with him and placed calls to the RCMP and back to the garage to update them. At some point, the male walked away from the vehicle and was pursued both by Hanson’s employees and the RCMP. Ultimately, the male was not located. [ 6 ] Mr. Wilkins gave a statement to the police after the July 19th encounter with the male. In his statement he did not provide a description of the male. No photo lineup or any other process to identify the male was undertaken. The male was not previously known to Mr. Wilkins. There was no further contact between Mr.

Wilkins and the male between July 19th and the trial, approximately eight months later. [ 7 ] In court, Mr. Wilkins gave a two-part description of the male. The first part was a description of his clothing. The male was wearing a baseball cap, dark hoodie, and dark pants. The second part was a description of the male's physical appearance. He was described as taller, well groomed, no facial hair, and between his late 20's, early 30's. [ 8 ] Mr.

Wilkin's identified the Accused, who was sitting in the courtroom next to defence counsel as the male he had seen in the vehicle. [ 9 ] The second witness who provided identification evidence was Mr. Carroll, also an employee of Hanson’s garage. Mr. Carroll was also present at Upper Base when the stolen vehicle was located with male sleeping in the driver’s seat. Mr. Carroll did not get as close to the male as Mr. Wilkins did. Mr. Carroll did not have any conversation with the male, and Mr. Carroll was inside his own vehicle for much of his observations of the male. The male was not previously known to Mr.

Carroll. Following the July 19th encounter, Mr. Carroll did not give a statement to the police. Obviously then he did not provide a description to the police, nor was a photo lineup or any other process to identify the male undertaken. [ 10 ] Two to three days after July 19th, Mr. Carroll was driving to work when he saw a male wearing the same clothes as the male who had been in the stolen vehicle. He circled back to get a better look and determined that it was the male who had been in the stolen vehicle. He called the police and followed the male, keeping him in his sight until the police arrived.

He was present when the police arrested the male and was asked if it was the person who had been in the stolen vehicle. He confirmed it was.

[11] There was no further contact between the male and Mr. Carroll until the trial. At trial, Mr. Carroll described the male as wearingblack jogging pants with a white stripe, a black hooded sweatshirt, a blue jacket, and a peaked baseball cap. He did not provide adescription of the physical appearance of the male. He identified the Accused as the male and said he was positive as to hisidentification. [12] Mr. Carroll also testified that following the events of July 19th, the employees of Hanson garage talked amongst themselves aboutthe identity of the male in the stolen vehicle.

There is no evidence as to the nature of those discussions. [13] Both identification witnesses were certain in their identification of the Accused as being the male found in the stolen vehicle. Theircredibility is not in issue; however, the reliability of their evidence is. [14] The inherent dangers of eyewitness identification are well-known to the Court. I cannot state these dangers any better than theOntario Superior Court did in R v McDonald, 2014 ONSC 1254, 2014 ONSC 1254 at paras 52-53 [McDonald].

Judicial experience with eyewitness identification evidence has established that all too often it has been the cause of wrongfulconvictions. The underlying causes have been many and various including reliance upon an honest and convincing witness who ismistaken and the unconscious filling in of gaps with erroneous characteristics. The notorious risk associated with eyewitness identification prosecutions tends to be accentuated where there is an absence ofconfirmation by forensic or other evidence.

In the instance of the purported identification of a stranger, as opposed to reportedrecognition of a person previously known or encountered by the witness, the court must proceed particularly cautiously in assessing theevidence of an eyewitness claiming that the person observed at a crime scene is, in his or her opinion, the person subsequently identified. [15] Further along the Court states (McDonald at para 55): Similarly, in R. v.

Gough, 2013 ONCA 137 , 2013 ONCA 137, at paras. 14-5, 34-9, the appellate court found that the trial courterred in failing “not only to self-instruct properly on the inherent unreliability of identification evidence, but also to advert to andadequately scrutinize the specific frailties disclosed by the evidence”. [16] The "inherent frailties of eye-witness identification evidence are well-established" and can "lead to wrongful convictions, even incases where multiple witnesses have identified the same accused": R v F.A., (ONCA), 183 CCC (3d) 518 at para.39. [17] Also, in R v Turner, 2012, ONSC, 4685 Canlii at para 35, the court states: As a general rule, in-dock identifications, by an individual previously unacquainted with a suspect prior to the relevant event, arevalueless in terms of probative impact.

Not only has time passed since the alleged crime, but also the physical set-up of the courtroomrecognizably presents the Accused as the individual on trial and therefore as the suspect toward whom the finger of accusation haspointed: see R. v. Hibbert, 2002 SCC 39 , [2002] 2 S.C.R. 445, at para. 49; R. v. Cranham, [2012] ONCA 457, at para. 11; R.v. Manley, 2011 ONCA 128 , 2011 ONCA 128, at paras. 20-2; R. v. Brown, 2009 ONCA 563 , 2009 ONCA 563, atpara. 23; R. v. Hasson, 2008 ONCA 615 , 2008 ONCA 615, at para. 7; F.A., at para. 47; R. v. Izzard (1990), (ON CA), 54 C.C.C. (3d) 252 (Ont.

C.A.), at pp. 255-6. [18] Keeping these cautions in mind I must now assess the eyewitness identification in this matter. [19] The evidence from each of the witnesses is characterized by the features that tend to accentuate the inherent unreliability of theevidence, as referred to in McDonald, those being that there is no corroborating forensic or other evidence. I must be cautious aboutusing the eyewitness evidence of witnesses to corroborate each other given that the evidence of each witness is subject to the samefrailties.

The witnesses are identifying a person not previously known to them, and, finally, there is a suggestion in the evidence thatthere was some discussion on July 19th that may have affected the nature of the eye witness evidence. [20] I must also consider the specifics of the evidence provided by each witness. [21] Mr. Wilkins’ did not describe the male as Inuk. Given the demographics of Nunavut, and Iqaluit in particular, it would be commonplace for a person to be described as Inuk or Qallunaat, or non-Inuk. The balance of the physical description given by Mr. Wilkins was

generic. The male was described as “taller”, which is a subjective assessment of height and is of no assistance if one does not know what the comparative is. The lack of facial hair is more precise but is a physical characteristic that is subject to change over time. The description of the male being “in shape” is again both generic and subjective. It may well be that the Accused fits this description, but so do many others. [ 22 ] Mr. Wilkins’ description of the clothing is also generic and there are a vast number of young men who can be found to be wearing clothes of the same description. [ 23 ] Mr.

Carroll did not provide a physical description of the male to the police or in court. He simply identified the Accused as being the male without any explanation as to how he was able to reach such a determination. He provided a description of the male's clothing similar to that of Mr. Wilkins, with the additional detail of there being a white strip on the pants.

In my view, this is not sufficient to allow the clothing to be relied upon as an identifying feature. [ 24 ] I find that the eyewitness identification is not sufficient to establish beyond a reasonable doubt that the Accused was the male found in the stolen vehicle and I find him not guilty. B. Count #2: Resist arrest [ 25 ] Mr. Akulukjuk is charged with resisting officers in the execution of their duty on July 19th, 2013. It is clear from the evidence that the date on the Information is an error and the correct date should have been July 21st.

Given the manner in which the trial progressed, it is clear that the defence was not prejudiced by the error and there was no misunderstanding as to the incident the Crown was relying upon to make out the charge. I rely upon s. 601 of the Criminal Code, RSC 1985, c C-46 [Criminal Code], to find that the error in the date is not an issue. [ 26 ] The Accused was arrested on the morning of July 21st, 2013, after police were notified by Mr. Carroll that he had located the male who had been found in the stolen vehicle. Two officers attended to arrest the Accused.

One of the officers knew the Accused as she had had prior dealings with him. One officer testified as to the arrest of the Accused and his transport to the detachment and placement in cells. [ 27 ] The officer testified that when the Accused was told he was under arrest for stealing a vehicle he denied knowledge of the incident and was not happy. He was told to put his hands behind his back and would not. The other officer took out her Taser at which point the Accused put his hands behind his back and was handcuffed.

The officer testified that there was nothing out of the ordinary while placing him in the police vehicle. The Accused was agitated while being transported to the detachment. There did not seem to be any difficulty getting him from the vehicle into the detachment. [ 28 ] Once in the detachment it was necessary to remove some of his clothing. The Accused did not want to take his coat or his shoes off. The officer testified that she held the Taser towards the Accused and the Accused was instructed to remove certain articles of clothing or he would be Tasered.

While it took some time for this process to be completed, it was ultimately accomplished. The officer was quite clear in her evidence that during this process the Accused did not do anything physical towards either officer. [ 29 ] The Crown invites the Court to conclude that because the officers felt it necessary to bring out their Tasers the court should find that the Accused resisted. I do not accept that proposition. There are many reasons why officers might remove their Tasers or other equipment when dealing with a person, including prior knowledge of the Accused and his temperament.

This is quite understandable and I do not criticize the officers for having done so. However, it does not flow that precautions taken for officer safety are proof of a criminal offence. [ 30 ] In R v Whatcott, 2005 SKQB 302 , [2005] 11 WWR 338 , the Court reviewed the case law on resisting officers in the execution of their duty and concluded that resisting requires some positive physical act of resistance.

What is commonly referred to as “passive resistance”, by failing to comply with the directions of police officers, is not sufficient to make out the charge of resisting. [ 31 ] There is no evidence before me of the Accused having made any positive physical act of resistance. Clearly he was not happy with finding himself being arrested and taken into custody. He did not comply with officers’ directions immediately, but the officer was clear in her evidence that there were no physical acts of resistance.

[ 32 ] I find the Accused not guilty of resisting the officers in the execution of their duty. C. Count #3: Uttering threats [ 33 ] The Accused is charged with uttering threats of bodily harm or death to one of the officers involved in his arrest. The specific words he uttered were, “I'm going to fucken punch you. . . I'm going to hit you.” [ 34 ] The officer also testified that the Accused said, “I'm going to get you” and that he was saying things similar to that.

It is not clear from her evidence if those were the exact words uttered by the Accused. [ 35 ] The officer was not able to testify as to much of what was said by the Accused. He was clearly upset about being arrested and was using profanities and, in the officer's words, being loud. [ 36 ]

Section 264.1 (1) of the Criminal Code provides that it is an offence to threaten to cause death or bodily harm. I accept that the words uttered should be considered in conjunction with the circumstances in determining whether or not a threat was made. However, one must start with consideration of the words actually uttered. The Criminal Code is specific in providing that it is not every threat that will fall within the section; it is only threats to cause bodily harm or death. The evidence does not disclose any threat to cause death.

The issue is whether the words uttered and the circumstances in which they were uttered make out a threat to cause bodily harm. [ 37 ] Bodily harm is defined in the Criminal Code as injury that interferes with a person’s health or comfort and which is more than transient or trifling in nature. Not all assaults result in bodily harm and it flows from this that not all threats to commit assaults are threats to cause bodily harm. [ 38 ] The words uttered do not threaten bodily harm.

There is nothing in the circumstances in which they were uttered such as, by way of example, the brandishing of a serious weapon while uttering the words, that would allow me to infer that the threat was one of bodily harm. [ 39 ] Further, although it is not necessary to my decision, it is not clear that the words uttered were directed at the person named in the charge. There was one other officer present. It may be that the words were directed to both of the officers, but there is a lack of evidence on this point. [ 40 ] I find the Accused not guilty of uttering threats. D.

Counts 4 & 5: [ 41 ] Counts 4 and 5 are charges of breaching court orders by failing to keep the peace and be of good behaviour. A conviction on either of these counts is dependent on a conviction for a predicate offence. Accordingly, the Accused is found not guilty of these two counts. Dated at the City of Iqaluit this 24th day of April, 2014 _______________________ Justice S. Cooper Nunavut Court of Justice