R. v. Ulayuruluk, 2023 NUCJ 6

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ulayuruluk, 2023 NUCJ 6 Date: 20230224 Docket: 07-18-53 Registry: Iqaluit Crown: His Majesty the King -and- Accused: Jerry Ulayuruluk __________________________________________________________________ Before: Mr. Justice V.O. Ouellette Counsel (Crown): Counsel (Accused): J. MacFarlane C. D’Souza C. Rogers Location Heard: Date Heard: Iqaluit, Nunavut February 20, 2023 Matters: Decision on applications pursuant to the Canadian Charter of Rights and Freedoms , s 7, 9, 10, 11, 15,

Part 1 of the Constitution Act , 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 ; and to quash proceedings; and to enforce admissions of fact pursuant to ss. 655 of the Criminal Code of Canada, RSC 1985, c C-46 . REASONS FOR DECISION (Delivered orally) (NOTE: This document may have been edited for publication) [ 1 ] Jerry Ulayuruluk is charged with committing the second degree murder of Marie Itturiligak on October 26, 2018 in Igloolik, Nunavut. [ 2 ] The accused has been represented by a lawyer throughout the proceedings. A preliminary inquiry was held in February, 2021, and

the accused was committed to stand trial on a single count of second degree murder. A trial, before a judge alone, was scheduled for the weeks of February 28 and March 7, 2022 in Igloolik. However, the week of February 28, 2022 was used to conduct a voir dire to deal with the voluntariness of statements made by the accused. The second week of trial did not proceed and was re-scheduled for the weeks of November 21 and December 12, 2022 at the accused’s request. [ 3 ] In August 2022, Mr. Rogers became the accused’s lawyer. Mr.

Rogers told the court in October 2022 he was not prepared to proceed to trial on November 21, 2022. The trial week of December 12, 2022 was used to deal with the accused’s application to re-open the decision of the voluntariness voir dire . [ 4 ] The accused’s application to re-open the voir dire was dismissed by the court on December 16, 2022.

New trial dates were scheduled for the weeks of February 20 and March 20, 2023 in Igloolik. [ 5 ] However, the accused’s lawyer filed 3 motions: the first on February 2, 2023 ( Charter motion), 17 days before the start of the trial; the second, on February 7, 2023, 12 days before the start of the trial; and the third, on February 17, 2023, 2 days before the scheduled trial date.

The accused’s applications were all made returnable for February 20, 2023, the first day of the original trial date. [ 6 ] In response the Crown filed motions to dismiss the Charter application, the defendant’s motion to quash the proceedings, and made an application to enforce s. 655 admissions. [ 7 ] In the accused’s first application, filed on February 2, 2023, he alleges for the fist time in over four years since being charged, breaches of s. 7 , 10(a) , 10(b) , 11(

b) and 15 of the Charter and an order to abridge the time and granting leave to allow for late filing. [ 8 ] The accused’s second motion alleges breaches of s. 7 and 9 of the Charter .

The accused alleges a defect in the filing of the original Information filed in October, 2018, again for the first time after more than 4 years, and that all the proceedings are a nullity and should be quashed. [ 9 ] The third motion by the accused is to exclude all the evidence and quash the proceedings because of an apparent reasonable apprehension of bias by the judge who heard the preliminary inquiry and the motion to re-open the voluntariness voir dire ; Justice Charlesworth. [ 10 ] It is significant to note that the three motions by the accused were not even contemplated before January 31, 2023.

The accused’s current lawyer instructed his legal research assistant on January 31, 2023, that is only 20 days before the trial, to investigate for potential Charter breaches of the accused’s rights. [ 11 ] Each of the 3 motions is supported by an affidavit from the legal research assistant. [ 12 ] I will deal with the last motion, filed late on Friday, February 17, 2023, returnable for Monday morning, February 20, 2023.

The motion is titled: Supplementary Notice of Application, with a filed affidavit dated February 17, 2023 from the lawyer’s assistant. [ 13 ] On February 9, 2023, the assistant searched on-line dockets, looking for records related to the accused. What he found was 1 entry on October 17, 2016 out of Clyde River, where Justice Charlesworth is shown as a defence lawyer, adjourning the accused’s charges to Igloolik for a guilty plea on February 15, 2017.

The court records indicate that several defence lawyers appeared on the file and in fact, it was another lawyer, not Justice Charlesworth, who acted for the accused when he pled guilty and was sentenced. [ 14 ] The accused argues that this one adjournment appearance by Justice Charlesworth with the accused, without more, is sufficient to say that Justice Charlesworth could have been biased in her decisions as a judge regarding the accused. Those decisions are committing the accused to stand trial after a preliminary inquiry, making a s. 714 order and refusing to re-open the voir dire .

[ 15 ] This application is without merit and is dismissed. To allege bias on the basis of an appearance by a defence lawyer to speak to an adjournment is unfounded and a waste of court resources and such an appearance as counsel does not displace the presumption of impartiality. [ 16 ] On February 7, 2023, the accused brought his second application, which was to quash the Information, quash the committal, the Indictment and the warrant, order the accused’s release and order a stay of proceedings.

The motion is again made on the basis of the affidavit of the assistant. [ 17 ] The argument can be summarized as follows: that s. 508.1(2) of the CCC was not complied with, that is that the Information was not sworn and as a resulted it is a total nullity. [ 18 ] The facts are that the police officer in Igloolik signed the Information as Informant. Following a remand hearing, the Information was signed by a Justice of the Peace in Iqaluit. [ 19 ]

Section 504 does not require the laying of an information to be done in person.

Section 508.1 allows for laying of information by way of telecommunication, such as faxes. [ 20 ] The accused has not produced evidence that s. 508.1(2) was not complied with, because the circumstances around the swearing of the information are not in evidence. In this case, there have been numerous pre-trial conferences and a preliminary inquiry in February, 2021 resulting in the filing of an Indictment. The accused answered to the Indictment by electing a judge alone trial and entering a not guilty plea.

At the beginning of the voir dire hearing on voluntariness in February, 2022, the accused was rearraigned and again confirmed his not guilty plea. [ 21 ] The SCC in Chabot 1980 held that when an accused is arraigned on an indictment that has been filed following a committal to stand trial after a preliminary inquiry, the Indictment becomes the operative document in the criminal process, and provides a fresh starting point. [ 22 ] Lastly, the accused has not pointed to any prejudice he may have suffered.

The accused has known since October 2018 what he is facing. [ 23 ] The accused has not complied with Rule 9, Practice Directive 39, to bring his application no later than 30 days before the date fixed for trial. I am not prepared to abridge the time stated in the rule, because it is not in the interest of justice to do so. The accused’s lawyer has been on the file since August, 2022, and could have added this motion to the December 12, 2022 hearing. The submission by counsel of being from the south and not having a second counsel are not convincing.

They are not convincing because the lawyer didn’t even start to look for potential breaches until January 31, 2023, which was less than 21 days before the trial. [ 24 ] But even if I abridged the time, I would dismiss the application because there is no reasonable prospect of success. Besides all the reasons stated above, the SCC in Moore (1988) has said that the threshold for quashing is very high. The accused must show irreparable prejudice. He has not shown any prejudice let alone irreparable prejudice.

The affidavit in support does not disclose any prejudice and none was provided in oral submissions. [ 25 ] The accused’s first Charter motion was brought on February 2, 2023. The application alleged breaches of sections 7 , 10(a) , 10(b) , 11(d) , and 15 of the Charter . In support of the motion, the accused relies on the affidavit of the research assistant. [ 26 ] It is important to note that neither the affidavit nor the factum make any reference to the written decision of Justice Cooper filed March 18, 2022.

This is significant because although Justice Cooper was dealing with a voir dire on voluntariness, she in fact made several findings of fact which are directly relevant to s. 10(

a) and 10(

b) of the Charter . Unfortunately, the accused ignored the findings of facts and has argued on a set of facts which are contrary to Justice Cooper’s findings. Furthermore, the accused argues that the process of emergency call services should be assessed on the basis of what is the usual practice in Ontario.

[ 27 ] With respect to the s. 11(

d) breach, there is no mention made of it in the factum or the affidavit. Also, it was not argued in oral submissions. Regarding the s. 15 breach, the accused relies on the affidavit from the research assistant, who states he took a class on Aboriginal law at Queen’s, spoke to elders and came to the opinion that Inuit people face discrimination at the hands of the RCMP. No mention is made of the accused’s discrimination from his interaction with the RCMP. [ 28 ] Counsel for the accused agreed that this application should have been brought much sooner, not 17 days before the trial.

The lawyer agreed that there was nothing preventing the application to be heard December 12, 2022, along with the application to re-open. Counsel agreed he had Justice Cooper’s decision from March, 2022. The excuse of being from the south, having no second counsel and having difficulties communicating with the accused, are not borne out of the lawyer’s own evidence. That is to say, paragraph 2 of the affidavit filed February 2, 2023 states that the lawyer only assigned the research assistant on January 31, 2023, only 20 days before the commencement of trial to look into potential breaches.

Paragraph 2 reads as follows: On January 31, 2023, I was assigned by Craig T. Rogers to investigate the factual circumstances and research the legal issues surrounding potential breaches of Mr. Ulayuruluk’s Charter rights during his interaction with individuals that Mr.

Ulayuruluk could reasonably have perceived as individuals in a position of authority. [ 29 ] Based on the above facts it would not be in the interests of justice to allow for this very late filing. [ 30 ] However, even if the application proceeded, which it did, the motion is dismissed as there is no reasonable prospect of success. [ 31 ] During oral submissions by counsel for the accused, he withdrew or conceded no s. 10(

a) or s. 15 breaches. [ 32 ] The facts from the disclosure and Justice Cooper’s fact findings, made it clear that the accused had been promptly informed of the reasons for arrest, therefore no s. 10(

a) breach. [ 33 ] Regarding s. 15, I don’t know why it was brought considering it was based on a course taken by an assistant. [ 34 ] With respect to s. 10(

b) and other Charter breaches, the accused alleged 7 grounds: 1) Statements made to the 911 operator, were to a person in authority; 2) The initial arrest was for aggravated assault and not murder; 3) The accused was never provided access to a lawyer; 4) The accused was arrested for 1 st degree murder, not second degree; 5) The accused was detained as opposed to arrested; 6) The accused was intoxicated; 7) RCMP discrimination against indigenous people in general. [ 35 ] Prior to dealing with the individual grounds of Charter breaches, further context is important to review.

Counsel for the accused filed an amended application to re-open the voir dire on November 30, 2022. In support of the application was the accused’s first affidavit filed November 3, 2022. The accused filed a subsequent affidavit on December 7, 2022.

[ 36 ] In the amended application – the current lawyer states he was retained on August 23, 2022. He further states (paragraph 7 of the factum) that the accused was provided with the disclosure, evidence from the preliminary inquiry and Justice Cooper’s voir dire decision. This review occurred no later than September 27, 2022. Paragraph 8 of the factum states that on September 27, 2022 the accused informed the lawyers that he believed he was talking to the RCMP and not civilian when he called 911 on October 26, 2018.

In the accused’s November 3, 2022 affidavit he swears at paragraph 4 that he is now advised and understands that it was a civilian answering the call on October 26, 2018. [ 37 ] The accused swore another affidavit on December 7, 2022.

At paragraph 8 he stated: That I do not remember making a telephone call on October 26, 2018 to RCMP. [ 38 ] And at paragraph 9: That I challenge that my utterances to the RCMP on October 26, 2018 were not voluntary due to substantial alcohol consumption. [ 39 ] I will deal with individual grounds: Ground 1 – Statement to the 911 operator. [ 40 ] The facts are as found by Justice Cooper that the 911 operator did not identify herself as an RCMP Officer. The accused was never detained by the 911 operator.

The accused now states under oath he doesn’t remember calling 911 (or RCMP) so how could he have a subjective belief he was talking to a person in authority? [ 41 ] This is an attempt to set aside the previous ruling and has no reasonable prospect of success. Ground 2 – Arrest for aggravated assault [ 42 ] I believe counsel abandoned this ground in oral submissions. There is no s. 10(

a) breach – the facts are that the accused was arrested for aggravated assault, when it wasn’t clear the victim had died. When her death was confirmed the accused was arrested for first degree murder later reduced to second degree murder. Ground 3 – Accused was not provided access to a lawyer [ 43 ] This assertion is factually incorrect and was dealt with by Justice Cooper in her voir dire decision (See paragraphs 38, 50, 52 of the decision). The accused alleged 10(

b) rights being breached appears to be an attempt to set aside the findings of fact made by Justice Cooper. There is no reasonable prospect of success. Ground 4 – Arrest for 1 st degree murder [ 44 ] I believe this ground was abandoned during oral submissions. Going from first degree to second degree murder does not increase

the accused’s jeopardy. Ground 5 – Detention versus arrest [ 45 ] The facts found by Justice Cooper were that it was an arrest. But the rights of the accused would be the same if it was detention. This was dealt with in the voir dire . Ground 6 – Accused’s Intoxication [ 46 ] This issue was dealt with in the voluntariness voir dire . The judge found the statements were from an operating mind. The accused tried to get a different result with his attempt at re-opening the voir dire . At paragraph 5 of his November 3, 2022 affidavit he states he had consumed substantial amounts of alcohol prior to the incident.

In his December 7, 2022 affidavit, the accused repeated the same thing at paragraph 6. [ 47 ] At paragraph 9 of his affidavit the accused argues that his statements to the police were not voluntary “due to substantial alcohol consumption”. This ground, brought under the guise of a Charter application, is dismissed, having been dealt with on 2 previous occasions. Ground 7 – RCMP Discrimination [ 48 ] The lawyer dropped this alleged s. 15 Charter breach in oral submissions. [ 49 ] In

summary, all the grounds raised in this motion are without merit and have no reasonable prospect of success. Crown Application

Section 655 – Agreed Facts [ 50 ] The Crown has brought an application to enforce what they say are s. 655 admissions made by the accused. [ 51 ] Following the preliminary inquiry in February 2021, many pre-trial conferences were held between Crown, defence and a judge. In March 2021, the Crown sent to the accused’s lawyer a list of requested admissions. On November 12, 2021, the lawyer for the accused wrote to the Crown, via email, the subject line and attachments show as “Request for Trial Admissions.docx” [ 52 ] The lawyer wrote: Hi John After having met with my client, he is admitting to everything on the “trial admissions” document you had sent me except points 3 and 12. …

[ 53 ] At the end of the email it has “Mia”, then a space below, then the name Mia Manocchio. [ 54 ] The Crown wrote to current counsel 5 times: October 3, 2022, October 27, 2022, November 25, 2022, Jan 13, 2023, and January 24, 2023 asking him to confirm that the Statements of Agreed Facts were acceptable. [ 55 ] The lawyer for the accused did not respond until February 6, 2023, that is 14 days before trial, stating he was not bound or obligated to follow any admissions made by previous counsel. [ 56 ] The Crown argues that the requested admissions are not controversial and that the admissions do not impact the ultimate issue to be decided at trial.

The Crown argues, supported by case law as outlined in the filed brief, that this is a matter of fundamental trial fairness, and to have a change of position just 14 days before the scheduled trial would result in a significant delay of trial and the addition of many witnesses. The Crown argues there is no evidence of incompetent or ineffective representation or that the accused was not aware of the content of the admissions. [ 57 ] The accused did not state in an affidavit or otherwise, that he was unaware of the admissions or that previous counsel was incompetent.

Yet, the current lawyer states at paragraph 8 of his brief: There is no evidence that Mr. Ulayuruluk ever admitted anything. The supposed email is nothing more than hearsay allegedly uttered by a person who is not before the court. [ 58 ] At paragraph 6 of the accused’s brief, the lawyer writes: “Counsel did not receive disclosure from the Crown until the end of January 2023”.

This assertion is quite troublesome, because it is the same lawyer who wrote in a brief signed by him on November 30, 2022 at paragraph 7 the following: “The applicant submits that upon change of counsel, he was provided with a review of the disclosure…” [ 59 ] The accused’s substantive argument against the admissions, is on the basis that the Nunavut Criminal Rules of Court were not followed, specifically Rule 83: No admissions made by an accused or counsel for an accused at the pre-trial conference may be used against the accused at the trial unless the admissions are reduced to writing and signed by the accused or his or her counsel. [ 60 ] I find that Rule 83 is not applicable in these circumstances.

The requirement of the rule requiring a signature by the accused or their lawyer only applies if the admissions were made at a pre-trial conference. These agreed facts are not in the presence of a judge at a pre-trial conference. [ 61 ] However, if I am wrong, I would invoke Rule 133 and find the lack of an actual signature from the lawyer to be an irregularity and this would not render the admissions document a nullity.

In this age of electronic communications, an actual signature is not always practical. [ 62 ] Furthermore, s. 655 of the CCC does not require that admissions by the accused or the lawyer have to be in writing. The SCC in Park 1981 stated that all that is necessary is that counsel understands the matter and has made an informed decision.

In this case counsel consulted with the accused, who agreed with most of the admissions, which are not controversial and provided an explanation why certain admissions were not made. [ 63 ] Therefore, I grant the Crown application to enforce the s. 655 admissions which will be entered as Exhibit 1 in the trial. Dated at the City of Iqaluit this 24th day of February, 2023

___________________ Justice V.O. Ouellette Nunavut Court of Justice