R. v. Ulayuruluk, 2022 NUCJ 46

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ulayuruluk, 2022 NUCJ 46 Date: 20221216 Docket: 07-18-53 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Jerry Ulayuruluk __________________________________________________________________ Before: Madam Justice Charlesworth Counsel (Crown): Counsel (Accused): J. MacFarlane C. D’Souza C. Rogers L. Shadley Location Heard: Date Heard: Iqaluit, Nunavut December 16, 2022 Matters: Decision regarding application to hold a voir dire. REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) I. INTRODUCTION

[1] This is an application brought by the accused, Mr. Ulayuruluk, to “re-open” a voir dire for the purposes of determining theadmissibility of several statements the accused made which the Crown wishes to rely upon at trial. [2] I heard the application on December 12, 2022 as case management judge, having been appointed as case manager by Chief JusticeSharkey pursuant to

Section 551.1 of the Criminal Code. This decision binds the trial judge. II. BACKGROUND [3] Mr. Ulayuruluk is charged with second degree murder stemming from an incident alleged to have taken place on October 26,2018.

It was not until February 8, 2021 that this matter reached the preliminary inquiry stage of proceedings. [4] A year after the preliminary inquiry, between February 28 and March 4, 2022, Justice Cooper presided over a five-dayadmissibility voir dire relating to the Crown’s wish to “rely upon, either as part of its case or for the purposes of cross-examine (sic) ofthe accused, should he testify, a number of statements made by the accused.” [5] Justice Cooper found that all statements at issue were admissible.

In her written decision, released March 18, 2022 (R. vUlayuruluk, 2022 NUCJ 12 ), Justice Cooper provided detailed reasons as to why she found each of the statements to beadmissible. [6] In addition to her in-depth reasons on admissibility, Justice Cooper provided an explanation as to why the voir dire had to be heldat all as counsel for Mr. Ulayuruluk had conceded the admissibility of the statements. [7] Justice Cooper explained that recent appellate jurisprudence had dictated that trial judges are expected to exercise a “gate keeper”function to ensure any concessions trial counsel make are appropriate.

This function has become necessary as concessions are oftenchallenged by appellate counsel who take over carriage of a file after verdict: [3] There are cases where appellate counsel resiles from positions taken by counsel at trial. When this occurs, the conduct of the trialjudge, not trial counsel, is what is often under analysis by the appeal court… … [6] It is noteworthy that on appeal defence counsel did not suggest that the concessions had not been made.

It is noteworthy that, despitethe Court of Appeal voicing concerns regarding the advisability of concessions as to the admissibility of the statement given theprejudice to the accused, no questions were raised regarding the position taken by defence counsel at trial. The focus of the appeal wason the trial judge’s failure to exercise her gate keeping function. [8] Subsequent to the release of Justice Cooper’s decision on the voir dire, Mr. Ulayuruluk’s trial was set to commence in Igloolik onNovember 21, 2022 before a judge alone. III.

APPLICATION [9] It is against this backdrop of counsel conceding admissibility of Mr. Ulayuruluk’s statements and Justice Cooper proceeding witha five-day voir dire, that this application came before me.

[ 10 ] Counsel who conceded the statements in February and March 2022 was subsequently appointed as a Justice of the Peace for Nunavut in August 2022 and was no longer able to represent Mr. Ulayuruluk. [ 11 ] Mr. Ulayuruluk’s new lawyers and Crown counsel attended a pre-trial conference on this matter on October 21, 2022. At this conference Defence counsel advised the Court that due to their recent retainer they were not ready to proceed to trial on November 21, 2022.

Counsel also advised Justice Cooper that they intended to bring an application to “re-open” the voir dire on admissibility. [ 12 ] Justice Cooper cancelled the November trial date and set timelines for the filing of application materials and the prompt hearing of the proposed application to re-open. [ 13 ] Defence counsel sought, and were provided, additional time to submit materials. The application was filed November 24, 2022. A subsequent application was filed November 30, 2022.

Supporting affidavits were filed by the applicant on November 30 and December 7, 2022. [ 14 ] At an appearance before Chief Justice Sharkey on November 25 this application was set to December 12, 2022 for hearing before me. IV. ISSUES [ 15 ] It is settled law that the Court has inherent jurisdiction to “re-open” a voir dire when there has been a material change in the circumstances that were present when the voir dire was first heard. The only issue before me is thus whether there exists such a material change. V. POSITION OF THE APPLICANT [ 16 ] Mr. Ulayuruluk, based his application on two grounds: 1.

That until September 27, 2022, after reviewing the voir dire decision, Mr. Ulayuruluk was unaware that civilians at the Iqaluit RCMP detachment were answering the telephone calls made to Igloolik RCMP on October 26, 2018. Consequently, he believed he was speaking to an RCMP officer, a person of authority. 2. There was evidence of Mr. Ulayuruluk’s intoxication during the night of October 25 that was not entered at the original voir dire .

This evidence would have had an impact on the voluntariness analysis. [ 17 ] Owing to the above, the applicant pleads that it is not only appropriate, but necessary to reopen the voir dire to allow evidence to be brought forward regarding his intoxication and the voluntariness of any statement or utterance made by him to persons in authority on or after October 26, 2018. VI. POSITION OF THE CROWN [ 18 ] The Crown argues there has been no material change in circumstances that would justify the reopening of the voir dire . The Crown submits that all the relevant evidence regarding the statements made by Mr.

Ulayuruluk, at the time they were made, was lead at the initial voir dire . The evidence of intoxication that Defence counsel wants to introduce relates to events hours before the time the statements at issue were made and is not material to the decision made by Justice Cooper.

[19] The Crown further submits that evidence led at the voir dire contradicts Mr. Ulayuruluk’s Amended Voir Dire Application thatstates Mr. Ulayuruluk only realized after reading the voir dire decision that he was speaking with a civilian when he called the RCMPoperations centre. Counsel for Mr. Ulayuruluk confirmed on the record during the voir dire, with Mr. Ulayuruluk present, that thetelephone operator was not a person in authority. [20] The Crown pled that counsel for Mr. Ulayuruluk at the voir dire confirmed on the record at the start and end of the voir dire, withMr.

Ulayuruluk present, what was happening in court that week, what a voir dire was, and why it was done. Counsel also confirmed thata defence would be lead at the trial proper. At the conclusion of the Crown’s evidence on the voir dire, counsel also confirmed on therecord, with Mr. Ulayuruluk present, that no evidence would be led by the defence on the voir dire. VII. ANALYSIS [21] The Supreme Court of Canada in R. v. Calder, (SCC), [1996] 1 SCR 660, stated as follows in relation to when adecision of a trial judge may be varied or revoked: [21] In R. v.

Adams, (SCC), [1995] 4 S.C.R. 707, a recent decision of this Court, we set out the circumstancesunder which an order made at trial can be varied or revoked. At p. 722, in unanimous reasons for the Court, we stated: “As a general rule, any order relating to the conduct of a trial can be varied or revoked if the circumstances that were present at the timethe order was made have materially changed. In order to be material, the change must relate to a matter that justified the making of theorder in the first place.” [22] The Supreme Court recently affirmed Calder and Adams in R. v.

R.V., 2019 SCC 41 , [2019] 3 SCR 237 at paragraph 74where it writes: [74] Second, as a general rule, an order related to the conduct of trial may be varied or revoked if there is a material change ofcircumstances: C.A. reasons, at paras. 98-103; see also R. v. Adams, (SCC), [1995] 4 S.C.R. 707, atpara. 30; R. v. Calder, (SCC), [1996] 1 S.C.R. 660, at para. 21; R. v. La, (SCC), [1997] 2 S.C.R. 680,at para. 28. As evidence emerges at trial, both the probative value and potential prejudice of proposed evidence may change.

If a materialchange of circumstances occurs, either party may request that a previous evidentiary ruling be re-visited. [23] I note that Mr. Ulayuruluk swore in his supplemental affidavit that he does not recall making a phone call to the police emergencyline on the morning of October 26, 2018. This means he cannot provide evidence that at the time of the call he thought he was speakingto a police officer. The fact that he now realizes he was not, is irrelevant.

It is not a material change in circumstances. [24] Further, there was no argument made before me regarding the admissibility of the formal statements taken by the police betweenOctober 26 and 28, 2018, which did not start until Mr. Ulayuruluk had been in custody for over 12 hours and was sober. There clearly isno change in circumstances regarding this set of statements. [25] Finally, Justice Cooper found that Mr. Ulayuruluk’s utterances to the police in the early morning of October 26, 2018 wereadmissible as an exception to the hearsay rule, and intoxication is not relevant to that analysis.

As well, the proposed defence witnessescan only speak to Mr. Ulayuruluk’s condition up to about midnight on October 25/6, and the police officers testified that Mr. Ulayurulukwas intoxicated to some degree when they dealt with him after 4 a.m. The circumstances have not materially changed. [26] During the hearing before me, counsel advised me that Mr. Ulayuruluk’s instructions to him were different from the instructionsprovided to previous counsel. That is not information contained in either affidavit filed, and in any event does not amount to a change incircumstances which would justify re-opening the voir dire.

[ 27 ] The voir dire relating to the admissibility of evidence is a trial order. The applicant has led no evidence that satisfies me that a material change of circumstances has occurred, regarding any of the statements Justice Cooper ruled to be admissible. I am satisfied that trial counsel with carriage of the file are new and may have a different trial strategy than counsel who represented Mr. Ulayuruluk at the voir dire before Justice Cooper.

However, this alone is not sufficient to justify a new voir dire . [ 28 ] Justice Cooper was prophetic in explaining the gate keeper function she exercised in directing the voir dire to proceed despite the concession of the accused. Her decision, in addition to Mr.

Ulayuruluk’s counsel’s overt trial strategy at the voir dire , the absence of any allegation or evidence of negligence on behalf of the voir dire counsel, and that there have been no material changes in circumstance, leads me to conclude a new voir dire should not be ordered. [ 29 ] This file is dated and needs to proceed to trial as quickly as possible. The interests of justice also do not favour the reopening of the voir dire . For all of these reasons, I deny the application. This matter is set to 9:30 a.m. on February 20, 2023 in Igloolik for trial.

Dated at the City of Iqaluit this 16th day of December, 2022 ___________________ Justice S. Charlesworth Nunavut Court of Justice