R. v. Arnakallak, 2013 NUCJ 29

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Arnakallak , 2013 NUCJ 29 Date: 20131128 Docket: 11-11-135 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Ruben Arnakallak ________________________________________________________________________ Before: The Honourable Mr. Justice N. Sharkey Counsel (Crown): B. McLaren Counsel (Accused): A.

Crowe Location Heard: Iqaluit, Nunavut Date Heard: August 30, September 6 and 9, October 28-30, 2013 Matters: Voir Dire respecting Change of Venue and Judicial Interim Release REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Disclaimer Ban on publication: Publication of this voir dire is prohibited until the completion of the trial. Publication ban was lifted with the completion of the trial on October 21, 2014. I. OVERVIEW [ 1 ] Ruben Arnakallak [Ruben] is charged with second degree murder. The victim of the alleged offence is his brother Isa Arnakallak [Isa].

This took place on November 25, 2011, in Pond Inlet. The accused, Ruben, has been in custody since the incident. [ 2 ] He has elected trial by jury.

[ 3 ] A preliminary hearing took place in July 2012, at Pond Inlet, at which time Ruben was committed to trial. Eventually, a trial date was scheduled for February 2013, also at Pond Inlet. That trial did commence this past February. [ 4 ] Three days into the evidence, however, the presiding judge declared a mistrial. As the evidence unfolded it became apparent that one of the jurors had some involvement with the case, and would likely be required to testify as a witness.

It was untenable that this juror might testify before his fellow jurors and therefore a mistrial was the inevitable result. [ 5 ] Ruben's case was then listed to the Assignment Court with a view to fixing a new trial date. [ 6 ] Subsequently, the Crown filed a motion asking the Court to move the trial from Pond Inlet to another community. The Crown said that because of the number of Pond Inlet witnesses to be called by each side it was not likely that an appropriate jury panel could be summoned, or if summoned that a sufficient number could be selected to make up a jury.

Counsel for the accused, Ruben, opposed this motion and requested that the trial remain in Pond Inlet. [ 7 ] Counsel for the accused then brought an application to have her client, Ruben, released on bail. Counsel called a number of witnesses as prospective sponsors and sureties on behalf of her client. In addition, counsel provided the Court with correspondence from private citizens as well as government and civic officials in support of her client's release. [ 8 ] Respecting the Crown's application to move the trial, I do not believe that it is unlikely a jury could be empanelled in Pond Inlet.

Accordingly, the new trial will be set for Pond Inlet. [ 9 ] Respecting the application for bail, I believe that it is necessary to detain the accused in order to maintain public confidence in the administration of justice. Accordingly, the accused will remain in custody pending trial. II. THE CHANGE OF VENUE APPLICATION A. Background (i). Pond Inlet Jury Statistics [ 10 ] There are approximately 1,500 people in Pond Inlet. I directed the Sheriff to report on the number of potentially eligible jurors in the community.

He reported that there are 809 such people [ Sheriff’s Report Detailing Jury Panel (voir dire) , Exhibit D-23]. The Sheriff also provided a report from the first trial in February, which showed that some 300 people had been summoned for jury duty [ Report of Sheriff (voir dire) , Exhibit D-20 [ Sheriff’s Report ]]. [ 11 ] The Sheriff’s Report also shows seven people were excused by the Sheriff prior to the trial date, and 19 more excused by the Sheriff when Court convened. Of the 300 summoned, 66 failed to appear, and 47 people summoned were present, but not called upon. (ii).

Number of Witnesses Expected to be Called by Crown and Defence [ 12 ] The Crown expects to call nine civilian Pond Inlet resident witnesses, including two witnesses in rebuttal of the expected defence to be put forth, and two expert "southern" witnesses. [ 13 ] The Defence expects to call twelve civilian local witnesses and one expert witness from the south. (iii). Time Required to Complete the Trial [ 14 ] It is agreed between the parties that three weeks should be reserved for the trial.

The parties are fairly confident that the evidence can be completed in two weeks. [ 15 ] In fact, only two weeks had been reserved for the trial this past February.

[ 16 ] In order, however, to properly allow for counsel summations and the judge's final charge to the jury, as well as allowing time for normal witness glitches, it is common ground that booking three weeks is advisable. (iv). Jury Selection at the February 2013 Trial [ 17 ] Counsel advised that jury selection commenced in the morning and was completed by noon. The Sheriff's Report from the trial shows as follows: 12 jurors and three alternates were chosen, the Crown used three challenges, and the Defence used 11 challenges. B.

The Crown Position for Change of Venue [ 18 ] The Crown reminds the Court it remains committed to the proposition that in Nunavut offences should be tried in the community where the incident occurred and that this includes trial by jury.

Accordingly, says the Crown, the application to move this trial from Pond Inlet is not made lightly. [ 19 ] The Crown calls upon the Court, in the interests of justice, to exercise administrative discretion as arbitrator of where the trial will take place and move the trial to another community because the chance of successfully empanelling a jury in Pond Inlet is minimal at best. [ 20 ] First, the Crown says, it may be difficult to even summons an appropriate panel or array because of the number of people in the jury pool with 'connections' to the previous or first trial held in February. [ 21 ] The Crown says this would or should cover various groups of people, including the following: citizens who sat as jurors on the first trial; immediate family members and residents in the same household of the jurors from the first trial; and citizens who were summoned for the first trial and were either challenged or excused. [ 22 ] The Crown also notes that, historically, the Court has shown sensitivity to community life when it comes to calling on people for jury duty.

For example, the Sheriff does not summons citizens who have recently (within the past year, at the least) already served on a jury. The Crown points out that there have been two jury trials in Pond Inlet since the February trial in this case. [ 23 ] The point to be made, says the Crown, is that the prospective pool of jurors may not, in reality, be as big as it appears on paper. [ 24 ] A more substantial concern for the Crown is, however, the difficulty of picking a fair and unbiased jury given the number of local civilian witnesses to be called for both Crown and Defence.

The Crown says that with a total of nearly 25 local witnesses to be called, the risk of a 'connection' between each prospective juror and at least one of the witnesses (if not more than one) is high.

Indeed, the Crown suggests that there will likely be no prospective juror who does not have a family, work, or other close relationship with a witness. [ 25 ] The Crown does not make this application for a change of venue along the more common or traditional grounds that the notoriety of the crime, because of extensive press publicity, might prevent an unbiased hearing; or that stories and rumours in the community abound to an extent which raises the same concern. Rather, the Crown's motion to move the location of the trial is anchored in practicality.

The wedge of the Crown’s argument is planted in the notion that it will be nearly impossible to empanel a jury. [ 26 ] The Crown does, however, raise an underlying concern which it says may well impact the jury selection process. The Crown suggests that in a community the size of Pond Inlet this case is notorious and that there are likely strong feelings about this case in the community.

A man is charged with killing his own brother; it is well known that there was a first trial which ended prematurely; and it is also well known that defence counsel will present an alternate theory of what happened. [ 27 ] The Defence theory will cast the light of guilt upon a person in the community of known unsavory and dangerous character. [ 28 ] All of this, says the Crown, greatly increases the difficulty in empanelling an unbiased jury. [ 29 ] Initially, the Crown had suggested that the locus of the trial be moved to Iqaluit.

Eventually, however, during the course of the hearing, the Crown took the view that any change of venue would not necessarily require a move to Iqaluit, and that the community of Igloolik may well be a more appropriate choice; subject to a report from the Sheriff that the community could accommodate the staggered attendance of witnesses and allow for overnight jury sequestration if necessary.

C. The Defence Position Respecting Change of Venue [ 30 ] Counsel says that the Crown's concerns, while genuine, are greatly overstated. She notes that the same number of witnesses were under subpoena for the first trial last February as will be called for this second trial.

Counsel says that jury selection at the first trial was a relatively smooth process, which began in the morning and was completed by noon, and that there is no reason to expect otherwise for this trial. [ 31 ] I pause to note that both counsel who appeared and argued these motions before me were also trial counsel at the first trial in February. They also both advise they will be trial counsel this second time around. [ 32 ] Counsel for the accused would agree that the case is notorious in the sense that people in the community know about it, despite little press coverage.

She suggests, however, that it is speculative to say that this case has generated strong feelings in the community.

Counsel noted that the trial in February, despite the fact it took place when many citizens were at work, drew little if any attendance by the public. [ 33 ] Sadly, says counsel, the context of the crime, a death which occurred during an evening of drinking, is not such that would normally generate any particularly strong community feelings outside of the families who have to live with the aftermath. [ 34 ] In this regard counsel notes a number of historically high profile jury cases, where one might expect strong community sentiment, which were tried in the community of origin despite their notoriety. [ 35 ] Counsel properly reminds the Court, as well, that any community rumours about the case are the kind of thing that trial judges firmly instruct jurors, as a routine matter, to put out of their heads.

This is something, says counsel, which our collective legal experience says we should have faith in. Namely, that northern and Nunavut juries take such instruction seriously. [ 36 ] Counsel also took the position that if the Court were inclined to allow the Crown's motion, that a move to Iqaluit was an extreme step. Instead, Counsel suggested that the Court follow its own historical practice and move the trial to the nearest community with cultural and linguistic affinity to the community where the incident occurred, provided that community could accommodate the trial. D. Analysis: Change of Venue [ 37 ]

Section 599 of the Criminal Code , RSC 1985 c C-46, allows for changes of venue from one "territorial division" to another within the same province. The Court structures established for Nunavut and the Northwest Territories do not allow, however, for such territorial divisions or judicial districts. [ 38 ] Before the Territorial Court was created serious crimes were tried in southern Canada, often in Edmonton.

When the Territorial Court was established in Yellowknife the government of the day still contemplated that much routine criminal work would continue to be done by local justices of the peace who would often also be the local RCMP detachment commander. [ 39 ] The first judge of the Court, Justice Jack Sissons, almost immediately upon settling in Yellowknife took the Court out into the communities of the Western Arctic.

Upon his return he began to plan for a circuit to the Eastern Arctic. [ 40 ] He was told bluntly by the Department of Justice in Ottawa it was "not necessary" for the Court to travel to the Eastern Arctic, that the government and the RCMP could handle things. Justice Sissons, however, would have none of this and declared, “...I was not going to be jollied or confused into abandoning the guidelines I had set for the Territorial Court of the Northwest Territories.

These guidelines were honoured by time and reason which had withstood the storms of a thousand years.” Specifically, Sissons noted, these guidelines included the proposition that “every person accused of a serious crime is entitled to be tried by a jury drawn from the area in which the offence was committed” [1] .

[ 41 ] The reference by Judge Sissons that his guidelines have “withstood the storms of a thousand years,” is interesting because the notion that the Courts should travel on assize finds antecedent in clauses 18 and 19 of Magna Carta, 1215 (UK). [ 42 ] Today, this principled approach to the administration of justice in Nunavut and the Northwest Territories, which attempts, as closely as possible, to 'take justice to everyman's door’ is reflected in our Criminal Rules of Court [2] . Rule 37 of the Rules says, "...a trial shall be held in the community (

a) at or nearest the place where the offence is alleged to have been committed; and (

b) in which there are adequate facilities." [ 43 ] While Rule 37(6) says that "nothing in this rule limits the discretion of the Court to determine the place of the trial," the judiciary has respected the true intent and spirit of the Rules by fixing jury trials in the community where the offence occurred, as well as requiring change of venue applications if either party wishes otherwise. Despite having the power to do so, the Court has never arbitrarily fixed trial dates other than in the community, or near the community, where the crime occurred.

I pause to note the situation is otherwise in our sister jurisdiction Yukon, perhaps inter alia , because of the ease of travel to the largest settlement and judicial centre. [ 44 ] I make these historical references precisely because, in this case, the Crown had initially suggested that the trial be held in Iqaluit.

In fairness, and as the hearing progressed over the course of many days, the Crown demurred that this position was not the best of choices and that, assuming facilities are available, the community of Igloolik would be a more appropriate choice. [ 45 ] There will, of course, be many legitimate reasons a criminal trial would need to be moved to Iqaluit. However, I would also urge caution against the use of Iqaluit as, generally, the 'default' locus for criminal trials.

Not only does such a notion fly in face of well- established and principled judicial practice, it is also unfair to burden the citizenry of the capital city with lengthy jury trials unless there is no realistic alternative. [ 46 ] In this case, I am not persuaded that we will likely not be able to pick a jury. [ 47 ] In saying this I am mindful of the fact that a jury was successfully empanelled for the first trial last February. [ 48 ] I pause to note that I do not require a Sheriff's Report, pursuant to Rule 37(2), respecting the feasibility of holding a three week jury trial in the community of Pond Inlet.

I am well familiar with the community. I am also confident that our Sheriffs, if given sufficient lead time, are capable of precise planning with local officials and hotel operators to arrange for accommodating witnesses, and capable as well of 'creative solutions' to address, for example, overnight jury sequestration if necessary. [ 49 ] Respecting the Crown's concern of "interconnectedness" between the prospective jurors and the civilian resident witnesses, I would make the following observation. Such connectedness is always present when juries are empanelled.

The trial judge is required to examine each 'relationship' on an individual basis and decide if the relationship should prevent the person from being chosen. [ 50 ] It is only the number of such examinations which marks this case as remarkable. At the end of the day, this simply means more work for the judge, but does not itself speak for or against the chances of successfully empanelling a jury. [ 51 ] I am also of the view that any notion that prospective jurors may be affected by 'rumours,' can be dealt with at trial, as it is in any other case.

The presiding trial judge routinely asks a prospective juror whether there is any reason why he or she could not participate as a juror. If the prospective juror says that they have heard rumours, then the trial judge will inquire as to whether this might prevent the person from rendering a fair verdict, and depending upon the answer, the trial judge is able to deal with the matter. In addition, counsel have the option of using challenges. [ 52 ] I would agree that a larger panel should be summonsed than was summoned for the first trial - likely around 400 people.

It is also likely that I will preside at this trial. Accordingly, this is something which I will discuss with both the Sheriff and in Chambers with counsel at a later date. Obviously, the jurors from the first trial will be excluded from being summonsed. I do not agree, however, that their immediate family members or persons residing with them should be excluded. Indeed, it may be difficult to even locate these people, and we must not assume that jurors from the first trial have discussed the evidence with such people contrary to the trial judge's instructions.

[ 53 ] Since I plan to suggest to our Chief Justice that the trial be fixed commencing September 15, 2014, I would not exclude persons who have been jurors in trials from the spring of 2013, as their experience would be valuable. III. JUDICIAL INTERIM RELEASE A. The Crown Allegations [ 54 ] At 4:25 a.m. the police kicked in the front door of house #534, Isa Arnakallak's house. Isa lived alone in the house at the time. The only other entrance, the back door, was nailed shut.

The front door opens directly into the living room, and is only a few steps from the living room couch. [ 55 ] When police went in they found Isa lying on the couch, dead. There was nobody else in the house. [ 56 ] Isa had two fatal stab wounds, one to the carotid artery and one to the chest. The t-shirt he was wearing was soaked in blood. There was more pooled blood on the floor. A pull-over style parka was among some clothes on the floor, most of which were soaked in blood. There was blood on the outside of the parka, but none on the inside. There was also blood pooled on the floor, just inside the front door.

This blood was pooled around a make-shift wooden board or block which served as a locking mechanism and which the police had dislodged when they forced their way into the house. [ 57 ] The blood splatter expert says there was no sign of any struggle in the house or other splattering of blood which would indicate that Isa was killed in the house. [ 58 ] The reason the police went to the house was because about one-half hour earlier they had received a call through Telecoms in Iqaluit that Isa's brother, Ruben, was in the house with a rifle and was going to shoot people.

The caller also apparently made comments about people on the roof of a building with rifles. [ 59 ] The police took some time, given the serious nature of the call, to prepare a plan of response. [ 60 ] Police first arrived at house #534 at approximately 4:10a.m.

Again, this was about one-half hour after the call, however, they kept the house under observation prior to kicking in the door to gain entry at approximately 4:25a.m. [ 61 ] Isa was stabbed and died sometime between the call to police and their entry into the house. [ 62 ] Poamee Komanangapik [Poamee] is an older lady who lives a couple of doors down the street from Isa. [ 63 ] The Crown says it was the deceased, Isa himself, who made the call to police, from Poamee's house. [ 64 ] Colin Qamaniq [Colin] and his wife Lydia lived in house # 544 across the street from Isa's house.

Colin is a friend of both Isa and Ruben. [ 65 ] Colin, Isa, Ruben, and another fellow named Willy Enoogoo [Willy] were drinking and smoking dope at Isa's house. All were fairly inebriated. Willy, in particular, was so drunk that he could not provide any meaningful account of the events afterwards to the police. The pathology report showed Isa's blood alcohol level at .236 was roughly three times the legal driving limit. [ 66 ] During the course of the evening the two brothers, Isa and Ruben, got into an argument which turned violent. Isa hit Ruben over the head with a coffee mug, inflicting a small cut.

Ruben went to the washroom to attend to his cut. Isa left the house and headed down the street. [ 67 ] He stopped in at Poamee's place where he made a phone call. Poamee said she did not know what Isa was saying on the phone because he was speaking English. She was alarmed that Isa was drunk and after he left she made a phone call to her sister and her grandson, Levi, came to check on Poamee.

[ 68 ] As Levi was walking towards Poamee's place, he saw Isa across the street heading back to his house. [ 69 ] At this time, as Isa was heading towards his house, Colin, Willy, and Ruben were leaving Isa's house and heading across the street to Colin's house. [ 70 ] A third individual, Randy Attagootsiak [Randy] who had just been released by police after spending time in the cells also happened to be walking by. [ 71 ] Colin, Levi, and Randy all testified at the first trial in February. They all said that they saw Ruben walk up to Isa and begin to fight with him.

The fight was described as Ruben striking blows on Isa and Isa defending himself. The witnesses described the blows not as punches, but rather as downward motions of the fist, which the Crown says is consistent with a stabbing motion. Randy testified in-chief that he saw a knife in Ruben's hand that appeared to have blood on it. Under a rigorous cross-examination, however, he agreed that he could not be sure about this. [ 72 ] This altercation took place out in the street, about halfway between Isa's house and Colin's house. It appears to have only lasted a few minutes. [ 73 ] Colin continued on towards his home.

Isa followed Colin, and as Colin stepped into his porch, he turned and saw that Isa was behind him and wanting to come in. Colin told Isa to go away and Isa did so. Then, as Colin was about to open his door, Ruben appeared, Ruben showed Colin a knife in his hand and said something to the effect that he was about to use it. [ 74 ] Colin described this knife as a steak knife. [ 75 ] Colin allowed Ruben into his house, but he could not say what happened to the knife. Ruben stayed the night and slept on the kitchen floor. [ 76 ] Moments after Ruben's arrival, Colin's wife, Lydia, was awakened by some commotion.

She heard someone banging on the door and Colin saying, "Isa, go home." Lydia also heard an argument between Colin and Ruben. She overheard Ruben say that Isa had hit him with a cup and that he wanted to go back to Isa's to fight. Lydia said that Colin told Ruben to stay put for the night, which he did. [ 77 ] The next day, police arrested Ruben at Colin's house. Isa's blood was found on Ruben's clothing and shoe. [ 78 ] A couple of days later, Lydia found a knife on the porch. From the photos filed with the Court, it appears to be a hunting knife.

Isa's blood was on the knife; clearly, this knife is the murder weapon. [ 79 ] The pathologist who testified at the first trial said Isa's wounds could have been caused by the knife found by Lydia. [ 80 ] A trail of Isa blood was found, leading first from the scene of the fight in the street to Colin's porch and then from Colin's porch back to Isa's house. [ 81 ] There was also a sizable amount of Isa's blood splattered on the porch mat in front of Colin's front door. [ 82 ] The pathologist testified at the first trial respecting Isa's wounds. He said that either wound, to the artery or the chest, was fatal.

He also said that an arterial cut does not necessarily cause what laypeople might expect as a "garden hose" type massive spurting of blood. Rather, depending upon a number of variables, the wound may seal slightly and the bleeding could proceed more slowly.

He testified that a person with such a wound could function, walk and talk, for several minutes (possibly up to 10 minutes) before expiring without medical attention but that exertion would increase the flow of blood, and thus decrease the amount of time the person would be able to function before expiring. [ 83 ] The pathologist did not take specific note, at the autopsy, of any possible injury to or bleeding from the deceased's nose, which defence counsel contends may account for the blood on Colin's porch mat. [ 84 ] It is the theory of the Crown that Ruben stabbed Isa in the street during the fight, or more precisely, when Ruben attacked Isa in the street.

The Crown says that Isa then followed him briefly until Colin told him to go away and then after Colin and Ruben went into Colin's house, Isa attempted to get into the house by banging on the door and was again told to leave, which he did and went home.

[ 85 ] The Crown contends that only minutes would have elapsed between the time Isa was stabbed in the street until he got home, bent down to fix the wooden floor lock, and made it to the couch where he died of his wounds.

The Crown thus contends that in these few minutes Isa was able to walk to Colin's place, bang on the door, and then walk back home. [ 86 ] In the event that Ruben's defence suggests that the evidence is consistent with a person named Tommy Atadjuat [Tommy] having committed the offence, the Crown is prepared to call Tommy as a witness to account for his whereabouts throughout the night in question, together with his girlfriend who was with him for much of the night. [ 87 ] The Crown says that although Tommy was drunk and has limited memory of what happened the night Isa was killed, he does remember harassing another community member, Elisha Pewatoalook [Elisha], with a weapon. [ 88 ] In fact Tommy pleaded guilty to a weapons or assault offence respecting the Elisha incident.

Elisha said that Tommy appeared out of the blue waving a large hunting knife which Elisha drew a picture of and which is similar in appearance to the hunting knife found in Colin's porch. Elisha ran away from Tommy and did not receive any injury. [ 89 ] Tommy says he did not kill Isa. [ 90 ] The Crown says that Tommy's girlfriend, Linda Arnakallak, can say she was with Tommy most of the night, including the time Tommy was harassing Elisha, although she says it was with a fork, not a knife. [ 91 ] Linda was also with Tommy when he was harassing Isa early in the evening, around 9:00 p.m.

Tommy was banging on Isa's door and threatening him. [ 92 ] Linda then parted company with Tommy to spend some time with a girlfriend, Mary, but met up with Tommy later at their place where they both fell asleep. Linda says that the next day she and Tommy found out Isa was dead. [ 93 ] Linda is a cousin to both Isa and Ruben. B.

Additional Evidence to be Adduced by the Defence [ 94 ] Respecting additional evidence, the defence team has interviewed a number of prospective witnesses respecting the activities of Tommy Atudjuat on the night in question. [ 95 ] Nancy Kublu [Nancy] was Isa's former spouse on the evening of November 25, 2011. She did, however, visit Isa that night. She is now deceased. She says she was over at Isa's place along with their kids around 9:00 p.m. Reuben, Phillip Simonie, and Randy Atagootsiak were there as well. Nancy says that Tommy was loud, drunk, and banging on the front door.

She says he was also yelling that he wanted to kill Isa because he claimed Isa had raped his girlfriend Linda. Eventually, Tommy left. [ 96 ] Nancy said she did not go to the police about Tommy's threats because she was worried about what Tommy might do to her if she did; at this point, she said Isa was dead and Ruben was in jail. [ 97 ] Sometime between 3:00 a.m. and 4:00 a.m. Tommy showed up at the home of Sarahmie and Qavavauq Issuqanqituq. [ 98 ] No alcohol is permitted in this house.

Some people in the house were still awake and sober at that time, specifically, Stevie Atagootak [Stevie] and Lohka Issuqanqituq [Lohka], both are 23 years old; Carson Sangoya [Carson], who is 18 years old; and Atuat Issuqanqituk [Atuat] and Tina Atagootak [Tina], both are 16 years old. [ 99 ] Stevie says that he was in the kitchen making coffee when Tommy walked in. Tommy was drunk and wearing a hoodie with blood stains on the front and on both arms. Stevie said the stains looked fresh. Stevie also said Tommy had dried blood stains on his hands, and that he was breathing heavily and shaking.

Tommy only stayed a few minutes and had a bite to eat and some water. Before leaving Stevie says Tommy took off the hoodie as well as his shoes and put on another jacket and pair of shoes from the household. [ 100 ] In the past when Tommy was drunk, Stevie remembers that Tommy would threaten to kill Isa because of "stuff" that Tommy had

said Isa did to Linda. Stevie was a good friend of Tommy's deceased son, Chris. One day while at Tommy's house, Stevie says he overheard Tommy tell Linda that he would kill Isa one day. [ 101 ] Stevie said he did not report this to the RCMP immediately because he did not think it would be important. He says he did, however, make a report to the local detachment in December 2012 or in January 2013, and was told to contact the RCMP in Iqaluit. [ 102 ] Lohka remembers that people were playing video games when Tommy showed up drunk.

Lohka says that Tommy was shaking and 'sort of remembers' that Tommy took some clothes with him when he left. [ 103 ] Carson says that when Tommy showed up he appeared very panicked and pale, told people that he had to change his clothes, and did so. Carson also says Tommy told the people in the house not to tell anyone he had been there. [ 104 ] Atuat remembers Tommy coming into the house in a drunken condition and changing clothes before leaving. [ 105 ] Tina says she remembers Tommy coming into the house with no shoes on. She saw what appeared to be blood on Tommy's cheeks, fingernails, and lower arms.

Tina says Tommy told her not to tell the RCMP that he had come to the house. [ 106 ] Jonah Koonark [Jonah] was empanelled as Juror number 8 at the first Arnakallak trial. As the trial progressed, however, he found himself in a bit of a pickle. Jonah's status as a juror appeared compromised by his own involvement in the case. [ 107 ] In the course of defence cross-examination of Cst. Sorensen, which involved the Constable's knowledge about Tommy Atadjuat's activities, Jonah realized he likely had information which was relevant to the issues before the Court.

He accordingly sought out the Sheriff who advised the Court of the situation. Ultimately, a mistrial was declared. [ 108 ] The morning of Isa Arnakallak's death, Jonah was starting work as the supervisor of public works which included garbage collection and management. He was outside the old community hall when his nephew, Tommy Atadjuat, came up to him. Tommy appeared somewhat intoxicated and said words to the effect, "someone may be murdered," or "I murdered someone." Jonah went inside the building to stay away from Tommy.

When he came back out, Tommy had gone. [ 109 ] On December 4th, a week or so after Isa was killed, Jonah was at the local dump with his daughter and a few other people. Jonah's daughter had mistakenly put her wallet into the household trash. Jonah's little search party was looking for the wallet. They were searching an area of the dump where Jonah knew the most recent garbage is deposited. [ 110 ] In the course of the search they found a garbage bag containing what appeared to be a man's jacket with blood on it, Jonah thought the bag contained pants and shoes as well.

Someone in the group laid the jacket out on the ground. Jonah did not want to touch the jacket, but he could see what appeared to be blood on the right and left front. [ 111 ] The group abandoned the search for the wallet because what they had found made them feel uneasy. They did not take the bag to the RCMP nor report what they had found.

Jonah said that when they saw the clothes, "we got confused right away." He said that the group thought someone may have thrown away evidence and they did not want to get involved. [ 112 ] I pause to note that the admissibility of Jonah's ‘dump expedition’ into evidence at this trial will clearly be a contentious matter, and accordingly, it does not factor into any decision I make respecting judicial interim release. C. The Defence Position Respecting the Crown Allegations [ 113 ] Counsel suggests that important aspects of the Crown's proof against her client, Ruben, are problematic.

This, in turn, says Counsel, is relevant to one of the criteria which I must consider in examining the tertiary ground of detention, namely, the apparent strength of the Crown case. [ 114 ] Respecting the eye-witness evidence, Counsel notes that Randy Atagootsiak, who first said he thought he saw Ruben holding a

knife with blood on it, conceded during cross-examination at the first trial that he was not sure if he saw any knife. [ 115 ] Regarding the circumstantial evidence, Counsel asks how it is possible that there is no blood on the interior of the parka found in Isa’s house when Isa was wearing a parka at the time he was stabbed in the chest? [ 116 ] This is especially troubling, says Counsel, when the Crown postulates that the blood trail was made possible, in part, because Isa's clothing may have acted to seal the wound somewhat. [ 117 ] This, says Counsel, should lead the jury to question where and when Isa suffered the injuries which proved to be fatal, and to question whether he was stabbed in the neck and chest at all during the altercation with Ruben out in the street, and before he was banging on Colin's door. [ 118 ] The Defence concedes the testimony of the pathologist that a person with a carotid cut as well as a stab wound to the chest could function afterwards for a number of minutes before expiring. [ 119 ] Counsel notes, however, this same expert medical testimony to the effect that any exertion after being wounded would actually increase the flow of blood, that is produce more effusive bleeding. [ 120 ] If Isa had been stabbed twice, in the neck and chest, before he came to Colin's house and was banging on Colin's door, how then, asks Counsel, could there not be any blood on the inside of the parka that, presumably, Isa was wearing? [ 121 ] Counsel reminds us that Colin saw a steak knife and not a hunting knife of the kind that was found in Colin's porch a couple of days later, or of the kind described by Elisha that Tommy Atudjuat was brandishing on the night Isa was killed. [ 122 ] Counsel posits that the blood on Colin's porch, as well as the blood trail itself, could have come from the cut to Isa's leg which Ruben may have inflicted during the altercation in the street with the steak knife described by Colin, or blood from Isa's nose as a result of the same altercation. [ 123 ] Counsel says there is clearly a possibility that Isa suffered his fatal injuries after leaving Colin's porch the second time when he was banging on the door and told to leave.

Counsel says it is possible that Isa received his fatal injuries when he was attacked by "another person" either on his way home or after he got into his house. [ 124 ] Counsel further suggests that the evidence to be adduced by the Defence indicates that this "other person" may have been Tommy Atudjuat, a man with opportunity, motive, and on the night in question inclination to harm Isa. [ 125 ] The Defence position is that the police have displayed a tunnel vision approach to the case and once they concluded that Ruben was the killer, they did not pursue any other alternative. [ 126 ] Counsel suggests that this Defence view of the case is not speculative, and that the Defence is not required to 'prove' an alternate theory, only to point out the weakness of the Crown’s theory in terms of the onus of proof. [ 127 ] In response to the Defence position, the Crown says the prospect of a wrongful conviction is always a consideration for the Crown.

However, in this case, where the eyewitness and circumstantial evidence point to the accused, Ruben Arnakallak, as having inflicted the fatal wounds it will be for the jury to evaluate that evidence. [ 128 ] In particular, and respecting the eyewitness testimony, the Crown reminded that the witnesses who saw Ruben hitting Isa, demonstrated a downward "stab" type motion as opposed to a "normal" punching motion. [ 129 ] Respecting the notion that Isa may have been attacked and killed after he wandered home, the Crown notes the absence of any blood spattering, despite the abundant pooled blood, and the fact that Isa's door was secured so tight that the police had to kick it in to gain entry.

D. The Accused's Criminal Record [ 130 ] Ruben has a criminal record, which includes a record of breaching court orders: • In December, 2009 he was convicted of assault with a weapon, assault causing bodily harm, breach of probation, and mischief. He received 6 months jail and 1 year probation. • In February, 2009 he was convicted of a firearm offence, assaulting a peace officer, and 2 counts of breaching bail. He received 1 year probation. • In May, 2005 he was convicted of simple assault.

He received a 6 month conditional sentence and 1 year probation. • In August, 2001 he was convicted of simple assault and breach of bail. He received a 6 month conditional sentence and 1 year probation. E. Evidence Presented by the Defence at the Show Cause Hearing [ 131 ] Counsel's plan for Ruben's release into the community was extensive and specific. In a nutshell, it would allow him to work, as well to visit with his wife and small children during the day time. It would have him living at his mother's house under strict curfew in the evenings.

He would also be required to report regularly to police, to abstain from any intoxicating substances, and to stay away from his old drinking buddies as well as any other witnesses involved with the case. [ 132 ] Counsel filed a number of letters in support of her client's release. There were letters from the Assistant Deputy Warden and Ruben's Classification Officer at Baffin Correctional Centre to the effect that, with one minor incident, Ruben has made productive use of his time while on remand by working and by attending Alcoholics Anonymous meetings.

There were letters from Ruben's wife as well as the local Anglican Church minister which emphasized how the family needed Ruben at home to help take care of their children and for financial support. There was a letter from the Co-op manager saying that Ruben was an excellent worker. [ 133 ] I note that Counsel also filed a letter from the Mayor of Pond Inlet which I did not find very helpful in terms of supporting Ruben's release. The Mayor said only that if Ruben is released then “he does have to follow some rules from the RCMP and Social Services.

As long as he is following the rules, and if he can get the community's support, Ruben could be at home." The Mayor says further, "I'm supporting him as long as he follows the rules. But if he doesn't follow his rules and the community is concerned about him, the RCMP would have to do their duty." [ 134 ] I reference this letter from the Mayor for the following reason. In relation to the tertiary ground of detention it is not for the Mayor to determine the ultimate issue before the Court, namely, whether Ruben's detention is justified to maintain public confidence in the justice system.

At the same time, as Counsel alludes, the views of a Mayor may well factor into the Court's view. In Ruben's case, however, the Mayor makes it clear that he does not purport to speak on behalf of the community. To the contrary, his reference to community support for Ruben is a conditional one, he says "as long as he is following the rules, and if he can get the community’s support, Ruben could be at home." It is clear that the Mayor by saying, "I'm supporting him as long as he follows the rules," offers only his personal support for Ruben's release.

Accordingly, in assessing the tertiary grounds, I consider the fact of a letter from the Mayor to be of little value. [ 135 ] Counsel also called members of Ruben's family, including his wife, to give viva voce testimony and to tell the Court how each them planned to monitor and support Ruben if he was released. This testimony was lengthy and detailed and I was impressed with the sincerity of the family witnesses.

In my view none would hesitate to contact the RCMP in the event Ruben was in breach of bail, or if they even anticipated that he may be about to breach his bail. [ 136 ] I also heard from the accused, Ruben. He gave emotion laden testimony. It was also convincing testimony. In my view, Ruben's expressed intention to stay clean and to obey any bail conditions imposed was sincere. I accept his testimony that his time in remand has had a significant salutary effect upon him in terms of how he will behave if released.

[ 137 ] The Crown, nonetheless, has some reservations about Ruben's release plan. First, says the Crown, it appears that the family members do not present much ability to 'police' Ruben while on bail. In fact, says the Crown, Ruben's wife made a plea to release Ruben because she needed help raising the children.

Second, says the Crown, given Ruben's record and his propensity to drink, it is not realistic to suggest that Ruben could stay away from his old drinking buddies for an extended period of time. [ 138 ] The Crown is concerned that Ruben might, in a moment of weakness and feeling he was headed to prison anyway, collapse his resolve and take a drink. This prospect, says the Crown, could lead to tragic events despite the genuine intentions of the proposed sureties. Indeed, says the Crown, it might be too late by then for the sureties to make a difference. F.

Analysis: Judicial Interim Release [ 139 ] The onus is upon the Defence to show that Ruben's detention is not justified. [ 140 ] In fairness, the Crown has conceded that, if released, it is likely Ruben would attend Court.

Accordingly, respecting the primary ground, the Defence has discharged the onus of showing that Ruben's detention is not justified. [ 141 ] Respecting the secondary ground I am of the view, for the reasons alluded to above , that the Defence has discharged the onus of persuading me, on a balance of probabilities, that Ruben would not commit a further offence, including breaching any condition of his bail if released; or that Ruben would otherwise interfere with the administration of justice, for example by trying to influence a witness's testimony.

I share the reservations expressed by the Crown but, on balance, the evidence called by the Defence is persuasive in favor of release. The Defence cannot, however, guarantee safe conduct nor does the law require such guarantee.

All bail hearings involve risk assessment, and in this case, on balance, the evidence called by the Defence on the secondary ground favors release. [ 142 ] In this case the determination as to whether the accused is to be released or detained turns on the tertiary grounds. [ 143 ] The Defence must persuade the Court, on a balance of probabilities, that Ruben's detention on this ground is not justified. [ 144 ] In considering this tertiary ground of detention I must give consideration to interplay of the four statutory criteria identified by Parliament, in subsection 515(10) (

c) of the Criminal Code . [ 145 ] I must decide whether a right minded and reasonable citizen, the proverbial man or woman on the Clapham qamutiq, in possession of all the facts and mindful of the statutory criteria which I must apply, might think it necessary to detain the accused in order to maintain public confidence in our fragile justice system even though attendance in court and public safety are not concerns. [ 146 ] In this case, the gravity of the offence of murder favors detention. [ 147 ] In this case, the fact that the accused is liable, upon conviction, for a potentially lengthy term of imprisonment also favors detention. [ 148 ] A mandatory life sentence speaks for itself and the Court cannot assume parole would be granted regardless of the time an accused is required to serve before he is eligible for parole. [ 149 ] I do not agree with the Defence Counsel's position that because of Ruben's high level of intoxication the most likely verdict in the event that the jury finds that Ruben killed Isa is manslaughter. [ 150 ] In my view this is speculation, a jury may well decide, given the location of the wounds to the neck and chest, that despite being drunk Ruben armed himself and set out in a rage intent upon killing Isa who had earlier assaulted him. [ 151 ] Admittedly, since juries do not need to give reasons for their verdicts the prospect of a manslaughter verdict might be greater in this case if the matter were tried before a judge experienced in such matters, but even this is somewhat speculative.

[ 152 ] Accordingly, given that the Defence proposition is in my view speculative, it is not necessary to ‘crunch numbers’ respecting how much more time, if any, Ruben would likely serve in the event of a manslaughter conviction. [ 153 ] The circumstances of the offence, as alluded to by Crown counsel, are particularly disturbing and in my view favor detention. The context of the crime is brutal and senseless domestic violence. A man is charged with knifing his own brother to death in a drunken rage.

In my view there are no 'equities' which can be brought to bear on these alleged facts to somehow mitigate the circumstances of the offence. [ 154 ] Respecting the apparent strength of the Crown's case, Counsel for the Defence has noted a number of specific problematic aspects to the Crown's proof of the case; specifically, as noted above, the fragility of the eye witness accounts and the logical difficulties with some of the circumstantial evidence.

Counsel says that the police have completely overlooked the strong possibility that someone other than Ruben actually committed the crime, and that the Defence is in a position, after interviewing several witnesses, to credibly put forth such a proposition. [ 155 ] Counsel says that with her client's innocence at stake these difficulties in the Crown evidence must favor release of her client. [ 156 ] I disagree. [ 157 ] Counsel provided the Court with some authorities, most notably the case of R v Nakashuk, 2011 NUCJ 16 , [2011] Nu J No 40 [ Nakashuk ] . [ 158 ] The Court, in Nakashuk , examined the apparent strength of the Crown's case.

The accused was released. It was apparent, however, that the proof of the case largely came from the accused's own admission that she killed the victim. She did so, she said, because he was trying to rape her.

In addition, the forensic evidence supported the accused, Susie Nakashuk’s version of events. [ 159 ] Recently, in an unreported Memorandum of Judgment in the case of R v Arreak , (23 June 2013), Iqaluit 11-13-30 (NUCJ), I concluded that it would not be fair to detain the accused on charges of human trafficking on the tertiary ground where the strength of the Crown's case rested entirely upon the testimony of one witness, the complainant, and where the accused denied the offence entirely. [ 160 ] In the case of Ruben Arnakallak there are dents in the Crown's armor, to be sure.

But in my view these dents are not such that it can be said the Crown's case is not strong. [ 161 ] The circumstantial and eyewitness evidence points directly at the accused. It is for a properly instructed jury to deal with discrepancies and conflicts in the evidence and to resolve the question of whether the Crown has proved the case at the standard required. [ 162 ] After considering the interplay of the four statutory criteria in subsection 515 (10) (

c) of the Criminal Code , I have concluded that the Defence has not discharged the burden of showing, on a balance of probabilities, that detention of the accused is not justified on the tertiary ground. [ 163 ] Accordingly, the accused's detention is justified on the tertiary ground. [ 164 ] The accused, Ruben Arnakallak, is remanded in custody until trial.

Dated at the City of Iqaluit this 28 th day of November, 2013. _________________ Justice N. Sharkey Nunavut Court of Justice