Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut

Citation: R. v. Naglingniq, 2015 NUCJ 36

Date: 20151113

Docket: 08-13-429

Registry: Iqaluit

Respondent: Her Majesty the Queen

-and-

Applicant: Michael Naglingniq ________________________________________________________________________

Before: The Honourable Mr. Justice Johnson

Counsel (Respondent): B. McLaren

Counsel (Applicant): T. Fairchild

Location Heard: Iqaluit, Nunavut

Date Heard: August 4-5, 2015; September 18, 2015

Matters: Criminal Code, s. 264.1(1)(a); s. 733.1(1); Canadian

Charter of Rights and Freedoms, Part I of the Constitution

Act, 1982, being Schedule B to the Canada Act 1982 (UK),

1982, c 11, s. 7; s. 12; s. 24

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

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I. INTRODUCTION [1] On the evening of June 17, 2013, the accused was drunk and

disorderly and was causing enough of a disturbance at his sister’s residence that his brother David called the Royal Canadian Mounted Police [RCMP] detachment in Iqaluit.

[2] RCMP constables Garett Moore [Moore] and James Mearns [Mearns] responded to the call. The accused’s brother, David, was restraining the accused on the ground when they arrived at the residence. Moore cautioned and arrested the accused. He was handcuffed with his hands behind his back and placed in the back of a police truck. The police truck had a plastic window between the front and back seats known as a silent patrolman.

[3] The accused was taken to the detachment and placed in a police

holding cell. Mearns left and had no further involvement in the matter. The acting watch commander Constable Alexandre Benoit [Benoit] replaced Mearns. The accused was eventually charged with making threats against both officers and with breaching a probation order. Between the time of his arrest and his release, the accused was pepper sprayed and placed in a restraint chair.

[4] The accused argues that the police breached his Canadian Charter of

Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], rights under sections 7 and 12, when they destroyed videotape evidence and by using excessive force for the period when the accused was in the police cell. In a blended voir dire and trial, I heard evidence from the accused, Moore, Mearns, Benoit, and Sandy Tufts, a civilian guard who guarded the accused while he was in the police cell.

[5] There are two issues before me. First, is the accused guilty of making

the threats and of breaching his probation order? Second, if I find him guilty of the charges, the accused argues that the charges should be stayed because of the alleged Charter breaches. In the alternative, the accused argues there should be a reduction in his sentence because of the Charter breaches.

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II. FACTS [6] I make the following findings of fact. In making these findings I have

accepted the evidence of the police officers over the evidence of the accused because the accused was very intoxicated and had limited memory about what happened. Some examples from his evidence are at page 36 of the transcript:

A. I kind of got too drunk and I don't really remember getting picked

up by police.

Q. So you don't really remember what you were doing there?

A. Yes.

Q. Do you remember getting arrested?

A. Yes, a little bit.

{Trial Transcript, August 5th

, p 36, lines 18-23}

[7] At page 38 there were the following questions and answers:

Q. Did you say anything to the police?

A. Yes. I was talking words, bad words, probably swearing.

Q. Do you remember any specific things that you said?

A. Not really. Maybe just -- they were saying I was just gonna shoot

them but I was too drunk. I don't really remember.

Q. So you might have said that; you might not have said it? You don't

know what you said?

A. Yeah, I probably said it. I don't really remember.

{Trial Transcript, August 5th

, p 37-38, lines 24-27, 1-4}

[8] Moore drove the vehicle and Mearns was in the passenger seat on

the way to the detachment. The accused was yelling and swearing as they drove. At one point he threatened to shoot Moore. As the vehicle proceeded down the road the accused managed to pull his arms under his feet so that his arms were in front of him.

[9] The accused began to kick at the doors and windows and to head butt

the silent patrolman. Moore was concerned that the accused might be successful in kicking open a door and injuring himself. The officers told him to stop or he would be pepper sprayed. The accused did not stop and Moore stopped the vehicle. He opened the back door and tried to get the accused’s arms behind his back again, but the accused resisted and he was unable to do so. Moore responded by pepper spraying the accused in the vehicle and the accused immediately stopped the kicking and punching.

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[10] When the officers arrived at the detachment they placed the accused in a cell and removed the handcuffs. The actions of the police and the accused in the cell were videotaped, but the videotape was lost when it was purged and recorded over in accordance with the RCMP policy in force at that time.

[11] Moore told the accused he could use water from the bathroom in the

cell to alleviate the effects of the pepper spray. The effects of the pepper spray seemed to diminish after the accused was placed in the cell because he again became abusive. He started kicking the walls and the cell door. As described by Moore, the accused was kicking so hard he was concerned the door might come off its hinges. The accused also threatened to shoot Moore.

[12] Moore consulted with Benoit and they decided that the accused

should be put in a restraint chair. Benoit and Moore then placed the accused in what is known as a restraint chair. It is a chair that has arm and leg straps so that when a person is placed in it and the straps are tightened the person is immobilized.

[13] Benoit was familiar with use of the restraint chair and had seen a

video on its use and read the accompanying manual. He was aware of an RCMP policy on its use (that was contained in the Affidavit of Dominic Bell). Attached as exhibit “A” to this Affidavit is a letter from Constable Jacob MacKenzie that sets out the RCMP policy on the use of the restraint chair [Restraint Chair Policy]. He understood that a prisoner should not be restrained for more than 60 minutes. He checked on the accused after he was in the chair for 60 minutes and determined that the accused had not calmed down enough to be released. He left the cell and the accused remained in the restraint chair for an additional 1 hour and 41 minutes before he was released.

[14] The accused was not assessed by a medically trained professional. [15] Benoit was the acting commander and assumed the responsibilities of

the detachment commander, including the role of the Supervisor under the Restraint Chair Policy. He took no steps to advise the Detachment Commander of the unusual use of the restraint chair and the need to preserve the videotape.

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[16] There is a major conflict in the evidence of the accused and Moore and Benoit about an alleged incident of pepper spraying of the accused while he was in the restraint chair. The accused testified that he did not think he was pepper sprayed in the police vehicle, but rather that he was pepper sprayed while he was in the restraint chair. Moore and Benoit adamantly deny the allegation.

[17] The videotape evidence is not available because it was taped over in

accordance with RCMP policy at the time.

III. CONCLUSION A. Is the accused guilty of the threat and breach of probation charges? (i). Arguments [18] The accused argues that the threat was made against Moore and not

Mearns. Both officers testified that the threat in the vehicle was made about Moore. Tufts also testified that the threat was against Moore. The only evidence of a threat against Mearns was his evidence that the accused made a threat while he was being put into the cell. The accused argues that there are serious deficiencies in Mearn’s evidence. First of all, he made no handwritten notes about the events as they were happening. He prepared a supplementary report on the computer later on the evening of the event, but it was after he had consulted with other officers.

[19] With regard to both threat charges, the accused relies on R v Oyukuluk, 2014 NUCJ 33, [2014] NuJ No 31 (QL) [Oyukuluk], to argue that he did not have the mens rea required to be convicted of making a threat because he was incapacitated by alcohol and pepper spray.

[20] While acknowledging the case law goes both ways, the accused

argues that to sustain a conviction for breach of probation, the Crown must rely on an underlying conviction for breach of the peace and good behavior clause. I cannot convict the accused until I convict him of the threatening charge that would constitute a breach of the requirement in the probation order to keep the peace and be of good behavior.

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[21] The Crown argues that the accused admitted to using pot and being drunk and disorderly. He admitted he resisted arrest and was abusive to the officers. Those actions are sufficient to sustain a conviction for breach of the peace and good behavior clause, regardless of whether the accused is convicted of making the threats.

[22] The Crown distinguishes Oyukuluk on the facts. In that case, the

accused was a female who was calm before being arrested and then became upset after she was arrested and uttered a threat to shoot an officer. Mossip J. looked at the respective size and power distinction between the accused and the officer and noted that when the accused made the threat she had no access to a firearm or even possessed them. The Crown relies on the Northwest Territories Territorial Court judgment of Gorin J. in R v Koyina, 2014 NWTTC 11, 113 WCB (2d) 182. In that case, a highly intoxicated woman made insulting comments to a police officer while she was being arrested. While she kicked the silent patrolman she said “I’m going to beat you up, you fucking faggot”. Gorin J. held that an intoxicated person could still have the mens rea for making a threat if the person had an animus toward the person and that the threat was taken seriously.

[23] The Crown also relied on the unreported case of R v Panikapoocho {Nunavut Court of Justice, 2015, Court file # 11-14-76} [Panikapoocho]. In that case, Sharkey J. of this court rejected the argument advanced in Oyukuluk that if a person who is very intoxicated threatens to shoot someone they are not responsible if they do not have access to a weapon.

[24] The Crown submitted that the accused had an operating mind even if

he was intoxicated. He had a memory of some of the events of the evening and was very adamant that he remembered he was pepper sprayed while in the restraint chair. He had the capacity to form the mens rea and had an animus toward the officers and should be convicted of making the threats.

(ii). Analysis [25] In Oyukuluk, the female accused made statements captured in

videotape that included the words “fuck up” and “beat up” and made a reference to using guns against the officer’s child.

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[26] Mossip J. considered the classic cases of R v Clemente, [1994] 2 SCR 758, 91 CCC (3d) 1 [Clemente]; and R v Batista, 2008 ONCA 804, 238 CCC (3d) 97 [Batista], that set out the legal requirements for a conviction for making threats. She noted that the Crown must prove that the accused made the threats and that the person knew the threats would be taken seriously. The first requirement is the actus reus and the second is the mens rea. She then considered the test set out in Batista and at para. 23 stated:

I must consider what an ordinary reasonable person considering an

alleged threat objectively, informed of all of the circumstances

relevant to his or her determination would include accepting that Ms.

Oyukuluk said the words that she was going to, quote, "fuck up"

Maggie, and she knows that to mean, quote, "beat up", and she said the

words about guns and the RCMP officer's child and what she might or

might not do, as best we could understand it from the audiotape, I must

consider whether a reasonable person, considering whether those

words amounted to a threat at law is, what would an "objective, fully

informed, right minded, dispassionate, practical and realistic" think.

{Oyukuluk}

[27] She concluded that the accused’s actions did not satisfy the actus reus for a threat using the following analysis:

[33] I believe a reasonable person, fully informed of all of the

circumstances, including the condition of Ms. Oyukuluk, her

incarceration, the condition of her friend who had been screaming for

many minutes at that point, and who had wound her up so so-to-speak,

the fact that she had been moved into her own cell and was losing all

control and saying outrageous things, objectively looking at the entire

context of her, and the relationship between her and the constables,

would not interpret her outrageous words and conduct as a threat to be

taken seriously.

[34] She was an intoxicated, small Inuit woman, locked behind bars,

screaming profanities and nasty words at two constables on the other

side of her cell bars. These words, as Lang, J.A. said, as "misguided,

offensive and inappropriate" as they were, for the above reasons,

cannot meet the legal definition as set out above of a threat with

respect to either Ms. Kilabuk or the child of Cst. Brown. {Oyukuluk}

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[28] Mossip J. also found that the mens rea element of the offence was not satisfied because the accused did not objectively intend the threats to be taken seriously. She stated:

[35] As to the mens rea of the offence, I am not satisfied beyond a

reasonable doubt that Ms. Oyukuluk knew the words she was saying

would be taken seriously as a threat by the constables. Ms. Oyukuluk

testified that she does not recall making threats to the RCMP officers;

she does not wish bad things for the RCMP. She also testified that she

does not own any guns and that she would never hurt the RCMP

officers' children. {Oyukuluk}

[29] In the case at bar, both Moore and Mearns testified that the accused made threats to shoot Moore in the police vehicle. Moore also testified that a threat was made while the accused was placed in the cell. Moore’s evidence about the threat in the cell was corroborated by the independent witness Tufts. However, neither Moore nor Tufts testified that the accused made a threat to shoot Mearns. The only evidence of that threat comes from Mearns’ testimony. I am satisfied that his evidence is not reliable enough to satisfy the actus reus component of a threat charge and therefore acquit the accused of the charge against Mearns.

[30] I am satisfied that the actus reus for the threat against Moore is satisfied. The question I must now answer is whether he had the mens rea required. Am I satisfied beyond a reasonable doubt that the accused meant the threat to be taken seriously? To answer this question, I must examine all the circumstances and the relationship between the accused and the officers. He was so intoxicated that he cannot remember much about what happened in the vehicle. He was then pepper sprayed and incapacitated so the officers could get him to the detachment and into a cell. As the effects of the pepper spray wore off, he resumed his abuse and was eventually put in the restraint chair.

[31] It is not clear when the threat to shoot Moore occurred. It may have

been before or after he was placed in the restraint chair. If it occurred when the accused was in the restraint chair it is difficult to see how any reasonable person could take it seriously because the accused was completely immobilized. I accept the point made in Panikapoocho that the presence of a barrier does not necessarily mean that no threat can be taken seriously. Each case must be decided on its own facts.

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[32] In the final analysis I find I have a reasonable doubt about the mens rea of the accused and acquit him of the threat against Moore.

[33] The final issue is the breach of probation charge. I am in the school

that believes the breach charge should follow the conviction. Since I have acquitted the accused on the threat charges, it follows that I also acquit him of the breach of probation.

iii. Did the police breach the accused’s section 7 and 12 Charter Rights? [34] In the event that I am wrong about my conclusions about the charges,

I will briefly examine the Charter arguments.

[35] I am satisfied that the police action in using the restraint chair was unusual. As Tufts testified, he had only seen it happen once in his 15 years as a guard. It is an extraordinary use of force and the officers should have been alive to the requirement to do things by the book. That did not happen in this case.

[36] On the second page of Exhibit “A” of the Restraint Chair Policy of the

letter on the duties of the member placing the person in the restraint chair, it states:

If a prisoner is restrained for more than two hours, document the

reason in your notebook and on the file.

When a prisoner is in an approved restraint chair longer than two

hours, where available, an assessment must be conducted by a

medically trained professional…

As soon as practicable, advise your supervisor that a prisoner has been

restrained in a restraint chair.

[37] The duties of the supervisor are set out as follows:

Confirm that the prisoner is only restrained for as long as absolutely

necessary.

Confirm that the information supporting the use or continued use of an

approved restraint chair is documented on the operational file,

including verbal comments made by the restrained prisoner.

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Confirm that any prisoner who must be secured in an approved

restraint chair longer than two hours is subject to a medical assessment

where medical staff is available or a risk assessment has been

completed between yourself and a member. {Restraint Chair Policy}

[38] Benoit did not follow the Restraint Chair Policy when he left the accused in the chair for more than two hours and in failing to have him assessed by a medically trained professional.

[39] The accused distinguished the unreported judgment of Cooper J. in R v Nuvaqiq {Nunavut Court of Justice, April 17, 2015, Court file 08-13-574 [Nuvaqiq]}. In that case, videotape evidence was also destroyed. Cooper J. found that the police action did not amount to the unacceptable negligence standard set out in the leading cases of R v La, [1997] 2 SCR 680, [1997] SCJ No 30; and R v FCB, 2000 NSCA 35, 142 CCC (3d) 540. She noted that the videotape evidence was relevant to whether the police assaulted the accused in a cell. However, she found that the police did not breach the unacceptable negligence standard because the officers had no way of knowing that the accused was going to make allegations that the police used excessive force.

[40] I accept the submissions of the accused and agree that Nuvaqiq is distinguishable. Benoit should have been aware of the importance of preserving the videotape evidence because of the unusual use of the restraint chair. He should have reported it to the detachment commander so steps could be taken to protect that evidence.

[41] That evidence would clearly have shown who was telling the truth

about the allegation that the accused was pepper sprayed in the restraint chair. It would also have been relevant in analyzing the threat charges because it would have shed light on the condition of the accused at the time he was alleged to have made threats in the cell. It would have shed light on his condition a short time before when he was in the police vehicle. I find the police breached the unacceptable negligence standard and that there was a breach of the accused’s rights under Charter section 7.

[42] While the videotape evidence would have been determinative of the

excessive force allegations, I decline to find a breach of Charter section 12 on the evidence before me.

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[43] The final issue is whether the breach was one of the rare cases that satisfied the requirements of R v O’Connor, [1995] 4 SCR 411, [1995] SCJ No 98 [O’Connor]. I am satisfied that this is one of those rare cases that satisfy the O’Connor requirements and I would have ordered a stay of proceeding if I had not acquitted the accused.

Dated at the City of Iqaluit this 13th day of November, 2015 ___________________ Justice E. Johnson Nunavut Court of Justice