Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Jaypoody, 2018 NUCJ 36

Date: 20181129
Docket: 04-18-06
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Christopher Jaypoody

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Moray Welch

Counsel (Accused): Ilan Neuman

Location Heard: Iqaluit, Nunavut

Date Heard: October 26, 2018
Matters: Application for pre-trial bail pursuant to Criminal Code,
RSC 1985, c C-46 section 522(2) – second degree murder –
Gladue sentencing considerations on pre-trial bail – pre-
trial bail denied.

REASONS FOR JUDGMENT

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

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DISCLAIMER PAGE

Restriction on Publication:

By court order made under section 517 of the Criminal Code.

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Table of Contents
I. OVERVIEW ............................................................................................................... 4
II. THE PARTIES’ POSITIONS ..................................................................................... 4
III. THE LAW OF PRE-TRIAL BAIL .......................................................................... 5
IV. THE PROSECUTION’S ALLEGATIONS ............................................................. 6
A. Tracy Tassugat ...................................................................................................... 7
B. Rassie Noah .......................................................................................................... 8
C. Joamie Qillaq ........................................................................................................ 8
D. Nicodemus Illauq .................................................................................................. 8
E. Louisa Paniloo ...................................................................................................... 8
F. Teema Qillaq ........................................................................................................ 9
G. Sandra Ntow-Duku ............................................................................................... 9
H. Anastazia Jurkova ................................................................................................. 9
I. Christopher Jaypoody ......................................................................................... 10
J. Levi Illingayuk.................................................................................................... 10
K. Dr. Christopher Milroy ....................................................................................... 11
V. ISSUE ....................................................................................................................... 12
VI. ANALYSIS ............................................................................................................ 12
A. The primary ground for detention – s. 515(10)(a) .............................................. 12
B. The secondary ground for detention – s. 515(10)(b) .......................................... 12
C. The tertiary ground for detention – s. 515(10)(c) ............................................... 12
i. The apparent strength of the Prosecution’s case – s. 515(10)(c)(i) ............... 13
ii. The gravity of the offence – s. 515(10)(c)(ii) ................................................ 15
iii. The circumstances surrounding the commission of the offence – s.
515(10)(c)(iii) ........................................................................................................... 15
iv. The fact the accused is liable, on conviction, for a potentially lengthy jail
term – s. 515(10)(c)(iv) ............................................................................................. 15
v. The listed tertiary circumstances in s. 515(10)(c) are not exhaustive ............ 16
D. Sureties ............................................................................................................... 18
E. Why Gladue sentencing principles do not apply to pre-trial bail ....................... 19
i. The problems with the a priori cases ............................................................. 23
ii. The problem with the cultural context cases .................................................. 23
VII. CONCLUSION ...................................................................................................... 24
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I. OVERVIEW

[1] The accused, Christopher Jaypoody, is charged with the second

degree murder of his father, Levi Illingayuk.1 The incident happened
in Clyde River on February 1, 2018. Mr. Jaypoody was arrested on
February 5th. He has since been in continuous pre-trial detention.
He has elected to be tried by a judge and jury. His preliminary inquiry
is scheduled to be held in the community during the week of
December 3rd.

[2] Mr. Jaypoody has brought an application to obtain judicial interim

release, or bail, pending his trial.2 The right to reasonable bail
pending trial is a cornerstone of our justice system. This case
explores the limits of that right.

[3] To succeed in his pre-trial bail application, Mr. Jaypoody must satisfy
the Court on a balance of probabilities that his detention is not
necessary in all the circumstances of this case. I heard the
application on October 26, 2018. These are my reasons for decision.

II. THE PARTIES’ POSITIONS

[4] Defence Counsel urged the Court to grant Mr. Jaypoody pre-trial bail
with one or two sureties. In effect, Defence Counsel wants the Court
to release Mr. Jaypoody on a Recognisance with seven conditions.
The proposed sureties are Mr. Jaypoody’s 56-year-old mother, Dora
Jaypoody, and his 70-year-old step-father, Jayco Ashevak. 3 The
proposal is to have Mr. Jaypoody live with them in their home in Clyde
River. He would not be subject to a curfew. 4

[5] The Crown is not opposed to Mr. Jaypoody’s release on pre-trial bail
to return to Clyde River. Crown Counsel recommended that each
surety post $1,000. He recommended that I impose 12 conditions,
including a curfew from 9 p.m. to 7 a.m. every day.

1
Criminal Code, RSC 1985, c C-46, s 235 [Criminal Code].
2
Ibid, s 522.
3
A bail surety is someone who promises to the court that he will pay the pledged bond if the accused fails to
follow his bail conditions. Barron’s Canadian Law Dictionary, 1983, sub verbo “bail surety”.
4
Notice of Application for Bail, dated October 20, 2018, Tab 1 at 3 and 4.
 5

[6] Prior to the hearing, Defence Counsel filed a written memorandum. In

it, Defence Counsel set out the issues before the Court; however, he
merely outlined certain key events and dates along with details of the
proposed sureties. The memorandum did not argue the case in
favour of releasing Mr. Jaypoody.

[7] Crown Counsel did not file any written information before the hearing
to assist the Court. Instead, he presented the Court with the general
“thrust” of the prosecution’s case in oral submissions.5 Indeed,
Crown Counsel candidly admitted he was not familiar with the file, and
that he did not come to Court prepared to provide case-related
details.6 It was clear that the lawyers expected the Court simply to
rubber-stamp their agreement to release Mr. Jaypoody.

[8] As I noted earlier, the law requires Mr. Jaypoody to persuade the
Court on a balance of probabilities that he ought to be released. To
discharge that burden, the Court requires detailed information about
the anticipated strength of the prosecution’s case, as well as those
relevant circumstances surrounding the offence. The fact that the
lawyers agree does not meet that burden. Consequently, I adjourned
the hearing until the afternoon to give Crown Counsel a chance to
familiarize himself with the file.

III. THE LAW OF PRE-TRIAL BAIL

[9] Canadians enjoy the right “not to be denied reasonable bail without
just cause”. 7 This basic right gives substance to the presumption of
innocence which, in turn, lies at the heart of the rule of law.8

[10] Part XVI of the Criminal Code codifies Canada’s pre-trial bail law.

[11] Subsection 515(10) sets out the only conditions which may justify the
pre-trial detention of an accused. These conditions – known as the
primary, secondary and tertiary grounds – require pre-trial detention
when one or all the grounds are present:

5
Transcript of hearing (morning sitting), October 26, 2018 at 11.
6
This lack of preparation led directly to a fundamental misunderstanding of the strength of the prosecution’s
case. I will say more on this point later in my analysis.
7
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule B to the
Canada Act 1982 (UK), 1982, c 11, s 11(e) [Charter].
8
R v Antic, 2017 SCC 27, [2017] 1 SCR 509 at para 1.
 6

(a) where the detention is necessary to ensure his or her

attendance in court in order to be dealt with according to
law;
(b) where the detention is necessary for the protection or safety
of the public, including any victim of or witness to the
offence, or any person under the age of 18 years, having
regard to all the circumstances including any substantial
likelihood that the accused will, if released from custody,
commit a criminal offence or interfere with the
administration of justice; and

(c) if the detention is necessary to maintain confidence in the

administration of justice, having regard to all the
circumstances, including
i. the apparent strength of the prosecution’s case;
ii. the gravity of the offence,
iii. the circumstances surrounding the
commission of the offence, including whether
a firearm was used, and
iv. the fact that the accused is liable, on
conviction, for a potentially lengthy term of
imprisonment…9

[12] Individuals alleged to have committed second degree murder have

the right to apply for pre-trial bail. For offences committed in Nunavut,
only a judge of the Nunavut Court of Justice may grant pre-trial bail in
these and other listed serious offences.10 Section 522 says that the
judge must remand the accused into pre-trial custody: “unless the
accused, having been given a reasonable opportunity to do so, shows
cause why his detention in custody is not justified within the meaning
of section of subsection 515(10).”11

[13] This is why pre-trial bail hearings in Canada are often called show
cause hearings.

IV. THE PROSECUTION’S ALLEGATIONS

[14] I will briefly summarize the key evidence collected by the police during
the investigation.

9
Criminal Code, supra note 1, s 515(10).
10
Ibid, s 469.
11
Ibid, s 522(2).
 7

[15] Mr. Jaypoody was living with his father, his common-law partner,
Tracy Tassugat, as well as their two young children. Ms. Tassugat
gave three statements to the police.

A. Tracy Tassugat

[16] In her first statement, Tracy Tassugat said she had taken her two
children into a bedroom around 9 or 10 p.m. because Mr. Jaypoody
and his father were arguing. She said she did not see Mr. Jaypoody
assault his father. At some point, she left the bedroom. Mr.
Jaypoody told her that he had kicked his father in the ribs and that he
(father) had run away.12

[17] Ms. Tassugat gave her second statement the next day. She stated
the three adults had been drinking and that the father was making Mr.
Jaypoody mad. The men argued. Mr. Jaypoody “started to kick
Levi’s ribs” when the latter leaned over to get something from the
coffee table. Mr. Jaypoody had bare feet. Mr. Illingayuk got up and
retreated to his bedroom. Mr. Jaypoody followed him and stood at the
bedroom door shouting. At some point, Mr. Illingayuk left the house.
Mr. Jaypoody wanted to stop him, so she grabbed Mr. Jaypoody. 13

[18] Ms. Tassugat then gave a third and cautioned statement. In it, as
recorded in the precis, she stated that the three adults had drank six
or seven mickeys of alcohol. Mr. Illingayuk took a pill which he was
not supposed to take with alcohol. The men argued about the pill.
She continued:

They started to fight and Chris stood up. Chris started to kick
Levi with his heel while Levi was trying to grab something
from the coffee table. She observed Chris kick Levi once.
Levi ran to his room, and he went onto the bed and tried to
sleep. Chris was yelling at Levi, and she started to grab at
Chris to remove him from the room … Levi then ran out of the
residence”.14

[19] During the argument, Mr. Jaypoody asked his father “if he had to hurt
him before he went to the doctor”.15

12
Statement to Royal Canadian Mounted Police [RCMP], February 4, 2018, Exhibit 8.
13
Statement precis to RCMP, February 5, 2018, Exhibit 9.
14
Statement precis to RCMP, February 6, 2018, Exhibit 10.
15
Ibid at 1.
 8

B. Rassie Noah

[20] Rassie Noah lives next door. She said she heard “big banging” next
door. “Not long after”, Mr. Illingayuk knocked on her door. He did not
have a shirt or shoes on. Mr. Illingayuk was in a lot of pain and he
was holding his left chest. He said: “he was trying to be murdered”.
He said Mr. Jaypoody was trying to kill him, and he asked her to call
the police.16

C. Joamie Qillaq

[21] Joamie Qillaq is Ms. Noah’s husband. According to the statement

precis, he came out of the shower to see Mr. Illingayuk present. Mr.
Illingayuk said Mr. Jaypoody “beat him up”. He also said this was not
the first time Mr. Illingayuk had run away from Mr. Jaypoody.17

D. Nicodemus Illauq

[22] Nicodemus Illauq gave a statement to the police. Joamie Qillaq

called him to take Mr. Illingayuk to the Health Centre. When he
arrived at the residence, Mr. Illingayuk was in pain holding his left
side. Mr. Illingayuk said to Mr. Illauq that Chris had kicked him. Mr.
Illauq then took Mr. Illingayuk to the Health Centre adding “it was not
the first time he had to transport Levi to the health centre because of
Chris beating him up”.18

E. Louisa Paniloo

[23] Louisa Paniloo is a member of the extended family and she gave a
statement. After hearing of Mr. Illingayuk’s death, she went to the
residence where she saw Mr. Jaypoody “cursing at the nurse” over
the telephone. He was blaming the staff for the death saying they had
not arranged a medevac soon enough.19

16
Statement precis to RCMP, February 4, 2018. Exhibit 1.
17
Statement precis to RCMP, February 4, 2018, Exhibit 2.
18
Statement precis to RCMP, February 4, 2018, Exhibit 3.
19
Statement precis to RCMP, February 5, 2018, Exhibit 4.
 9

F. Teema Qillaq

[24] Teema Qillaq works at the Health Centre and was called in to take x-
rays. In his statement, he said Mr. Illingayuk was in pain and holding
his left side by his ribs. Mr. Qillaq asked Mr. Illingayuk what
happened and he replied that his son beat him up. Mr. Qillaq was
called in at five the next morning to take another x-ray. He noted that
Mr. Illingayuk was still in pain. He also noted what he believed were
teeth marks on Mr. Illingayuk’s right jaw area.20

G. Sandra Ntow-Duku

[25] Sandra Ntow-Duku was the first on-call nurse that evening. She
asked a second nurse to assess Mr. Illingayuk. An x-ray revealed
that he had suffered fractured ribs and a punctured left lung. He was
then assessed by a physician who ordered a medevac. According to
the precis of her statement, she continued:

… she asked what happened and Levi said “My son punched
me”. She asked where and he said “my lungs”. She asked if it
was a punch with a closed fist and he said “Yes”
… He was in severe pain”.

[26] Initially, she observed slight swelling on Mr. Illingayuk’s left side.
Bruising on his chest developed as time passed. Mr. Illingayuk sat up
around four in the morning complaining of the pain. The attending
physician inserted a chest tube and he was medevac’d shortly
afterward.21

H. Anastazia Jurkova

[27] Anastazia Jurkova was the second on-call nurse. She knew Mr.
Illingayuk from past treatments for his respiratory problems. In the
precis of her statement, she noted that on arrival Mr. Illingayuk had
trouble breathing and was in “extreme pain”. He told her that he
believed he had broken ribs. He told her his son had punched him.
He said that “a few times”. He “was lying on the floor trying to find a
position that didn’t hurt”. She noted small abrasions on the right side
of his back and right jaw. “The whole left side” of his chest “was

20
Statement precis to RCMP, February 5, 2018, Exhibit 5.
21
Statement precis to RCMP, February 4, 2018, Exhibit 6.
 10

broken”. She believed the injuries were too serious to have been
caused by a fist. She said Mr. Illingayuk had a “love-hate”
relationship with his son. She also noted that Mr. Jaypoody was
“intoxicated and not capable of normal conversation” when he called
her at the Health Centre the next day.22

I. Christopher Jaypoody

[28] Mr. Jaypoody gave a cautioned statement to the police on February 5,

2018. The precis states that Mr. Jaypoody claimed not to recall what
happened to his father. He claimed that he had been “blacked out
drunk”. He said they were drinking vodka. He said they were in the
living room and his father stood up. He then said he did not think
Tracy saw what happened. He said there were no other adults
present when his father was hurt. “Nobody else could have hurt his
dad, it was not Tracy or the kids”.23

[29] Defence Counsel told the Court that Mr. Jaypoody has successfully
completed two courses while on remand: Alternatives to Violence as
well as Substance Abuse.

[30] Mr. Jaypoody has a recent criminal record. Mr. Jaypoody was
convicted of assault on June 15, 2016. He received a suspended
sentence and probation.24 Crown Counsel was unable to identify the
victim of that assault.

J. Levi Illingayuk

[31] Mr. Jaypoody’s precis notes that the investigating officer played Levi
Illingayuk’s statement to Mr. Jaypoody during his interview. Crown
Counsel did not refer to Mr. Illingayuk’s statement, or what he told
police before he died of his injuries. Crown Counsel stated “it’s my
understanding he was kicked once”.

[32] At around 8 a.m. on February 2nd, Mr. Illingayuk was medevac’d to

the Qikiqtani General Hospital in Iqaluit. At 6:42 the next morning, Mr.
Illingayuk sat up in his hospital bed and stated that he was going to
die. He died 18 minutes later.

22
Statement precis to RCMP, February 4, 2018, Exhibit 7.
23
Statement precis to RCMP, February 5, 2018, Exhibit 11.
24
Criminal record Christopher Jaypoody, Exhibit 12.
 11

K. Dr. Christopher Milroy

[33] Dr. Christopher Milroy is a forensic pathologist at the Eastern Ontario

Regional Forensic Pathology Unit. He performed an autopsy on Mr.
Illingayuk in Ottawa on February 5, 2018. Dr. Milroy described Mr.
Illingayuk as “well nourished and well developed”.25

[34] I shall now list Dr. Milroy’s relevant findings respecting Mr. Illingayuk’s
injuries and the causes of his death:

 The abdomen was injured;

 The back was injured;
 The upper arms contained injury – see below;26
 On the left lateral chest and abdomen was blue, red and
purple bruising 23 x 22 cm;
 On the right side of the back was bruising and abrasion
5 x 1 cm;
 On the upper left arm was blue bruising;
 Subcutaneous bruising was present on the left chest
underlying the external bruising;
 There were fractures of the 3-10th left ribs laterally, the
11-12th posterior left ribs and the right 9-12th ribs
posteriorly with bleeding;
 Bruising was present on the right lateral diaphragm, 3
cm in diameter; 27
 Skeletal muscle A bruising present; 28

[35] Dr. Milroy summarised his findings as follows:

At autopsy there was extensive bruising of the chest wall with

multiple fractures of the rib cage. The pattern of bruising and
fractures is that of blows as kicks rather than punches.

Death was due to the chest injuries with chronic obstructive

airways disease as a contributing cause.29 [Emphasis added]

25
Notice of Application for Bail, supra note 4 at Tab 14 Report of Post Mortem Examination dated May 22,
2018, at 4.
26
Ibid at 5.
27
Ibid at 6.
28
Ibid at 9.
29
Ibid at 10.
 12

V. ISSUE

[36] Has Mr. Jaypoody satisfied the Court on a balance of probabilities

that his detention is not required in the circumstances of this case?

VI. ANALYSIS

[37] I shall examine each of the separate grounds for detention in turn.

A. The primary ground for detention – s. 515(10)(a)

[38] The Crown fairly conceded that Mr. Jaypoody is not seen to be a flight
risk. Mr. Jaypoody has satisfied his burden on the primary ground.

B. The secondary ground for detention – s. 515(10)(b)

[39] I agree with counsel there is no evidence to suggest that there is a

substantial likelihood that Mr. Jaypoody will re-offend, or interfere with
the judicial process, if he is released. Mr. Jaypoody has satisfied his
burden on the secondary ground.

C. The tertiary ground for detention – s. 515(10)(c)

[40] The key consideration in this application is the tertiary ground. This
ground is not limited to exceptional cases or unexplainable
circumstances. Nor is it limited to allegations of murder. As we have
seen, the tertiary bail ground is intended to foster and maintain public
confidence in the administration of justice.

[41] What we mean by “confidence in the administration of justice” – and

how judges are supposed to determine that issue – was considered
recently by the Supreme Court of Canada in R v St-Cloud. 30 Wagner
J (as he then was) on behalf of a unanimous court stated that judges
must apply a ‘reasonable person test’:

… a reasonable member of the public is familiar with the

basics of the rule of law in our country and with the
fundamental values of our criminal law, including those that
30
R v St-Cloud, 2015 SCC 27, [2015] 2 SCR 328 [St-Cloud].
 13

are protected by the Charter … In short, the person in question

in s. 515(10)(c) is a thoughtful person, not one who is prone to
emotional reactions, whose knowledge of the circumstances of
a case is inaccurate or who disagrees with our society’s
fundamental values. But he or she is not a legal expert
familiar with all the basic principles of the criminal justice
system, the elements of criminal offences or the subtleties of
criminal intent and of the defences that are available to accused
persons.31

[42] In other words, how would a reasonable person with the above-noted
characteristics view Mr. Jaypoody’s release on bail – more than eight
months after his arrest and before his preliminary inquiry is held?

[43] The reasonable person in my analysis could live in any of our

territory’s small and isolated hamlets.

[44] The reasonable person concept has been a part of our jurisprudence
since the nineteenth century.32 Objectivity is at the heart of the
concept. We see from St-Cloud that the concept as applied to pre-
trial bail is centred on reason and rooted in the rule of law.

[45] The tertiary ground for detention is a discrete ground; it stands

independently from the first two grounds and is not a residual catch-all
provision. It is also broad in scope; its applicability is not subject to
limiting restrictions.33 My tertiary analysis must also consider the
interplay between the four enumerated grounds. 34

[46] I now turn to each one of the four grounds listed in s. 515(10)(c).

i. The apparent strength of the Prosecution’s case – s.

515(10)(c)(i)

[47] Crown Counsel stated that the prosecution’s murder case was “very
marginal”. He was more confident respecting the possibility of a

31
Ibid at paras 79, 80.
32
Every Canadian law student learns about the quintessential reasonable man – “The man on the Clapham
omnibus”. It is widely believed the phrase was first used in England in 1871 in the Tichborne Claimant case.
33
St-Cloud, supra note 30 at para 87. Clapham is located on the South Bank of the River Thames in
London, England.
34
R v Arnakallak, 2013 NUCJ 29 (CanLII) at para 144, per Sharkey, J. Mr. Arnakallak was charged with
second degree murder. Justice Sharkey denied Mr. Arnakallak’s bail application.
 14

manslaughter verdict. That case, he said, was “very strong”.35 My

analysis shall consider each possible verdict.

[48] Crown Counsel stated that his “understanding” is that Mr. Jaypoody
only kicked his father once.36 The prosecution’s assessment
apparently is based on acceptance, at face value, that Tracy
Tassugat witnessed only one kick. Indeed, Defence Counsel urged
the Court that this is what happened.

[49] The jury may find Tracy Tassugat to be an unreliable witness. She is
Mr. Jaypoody’s partner and the mother of his children. She is an
interested party with reason to downplay what happened. In her first
police statement, she denied she was in the room and denied seeing
any assault at all. It will be the responsibility of the jury to weigh these
considerations respecting her credibility and reliability.

[50] More importantly, the prosecution’s assessment respecting the

strength of its murder case appears to fly in the face of more
compelling and objective evidence.

[51] Defence Counsel provided the Court with a copy of Dr. Christopher
Milroy’s autopsy report. Dr. Milroy specifically concluded that Mr.
Illingayuk received multiple blows. How else to explain the abrasion
and bruising on the right side of his back, the extensive bruising to his
left lateral chest and abdomen, his upper left arm, diaphragm, skeletal
muscle and the 14 broken ribs on both sides of his chest? In my
view, one may conclude that the only reasonable inference is that Mr.
Illingayuk was the object of a vicious and sustained beating.

[52] The suggestion of alcohol consumption just before the incident is

certainly a factor that needs to be explored further. Mr. Jaypoody
claims not to have any memory of the incident – but appears to recall
certain details which may undermine his claim. He told the police that
only the three adults were present and that Tracy could not have done
it.

[53] Based on the information before the Court, one may reasonably
conclude that the prosecution has a strong case against Mr.
Jaypoody. This ground works against Mr. Jaypoody’s release.

35
Transcript of Proceedings (morning sitting), supra note 5 at 11.
36
Transcript of Proceedings (afternoon sitting), October 26, 2018, at 6.
 15

ii. The gravity of the offence – s. 515(10)(c)(ii)

[54] Canadians consider the deliberate taking of another person’s life to be

a heinous crime. The circumstances of this case are aggravated
because the victim was killed in his own home – by a family member.
I have already noted that the evidence suggests strongly that
someone viciously assaulted Mr. Illingayuk. Thus, as to the gravity of
the offence, this case is at the high end of the scale. This ground
works against Mr. Jaypoody’s release.

iii. The circumstances surrounding the commission of the offence

– s. 515(10)(c)(iii)

[55] Alcohol-fueled domestic and family violence is an ongoing and

extremely serious reality throughout Nunavut. Domestic and family
violence fill our circuit court dockets. The effects of domestic and
family violence ripple right through our communities. Domestic and
family violence compels this Court to place the protection and safety
of Nunavummiut at the forefront of its work.

[56] In a bizarre twist, Ms. Tassugat suggested in her third statement that
Mr. Jaypoody deliberately hit his father in the chest so that he would
have to go see the doctor.37 Mr. Jaypoody was aware of his father’s
longstanding health problem. Mr. Jaypoody knew his father was
vulnerable. The jury may reject the defence suggestion that this was
“a compassionate deed gone wrong”; if so, the jury may find Mr.
Jaypoody’s foreknowledge and specific targeting of his father’s chest
are extremely aggravating circumstances.

[57] These factors place the case at the high end of the scale. This
ground works against Mr. Jaypoody’s release.

iv. The fact the accused is liable, on conviction, for a potentially

lengthy jail term – s. 515(10)(c)(iv)

[58] The punishment for second degree murder is life imprisonment. At

this stage, I must also consider the possibility that the accused might
be convicted of manslaughter. Even then, the accused could be

37
Statement precis to RCMP, February 6, 2018, supra note 14 at 1, 2.
 16

facing a sentence in excess of ten years in a federal penitentiary.38

Thus, this ground, too, is at the high end of the scale. This ground
works against Mr. Jaypoody’s release.

v. The listed tertiary circumstances in s. 515(10)(c) are not

exhaustive

[59] The four listed circumstances in s. 515(10)(c) were not intended by

Parliament to be exhaustive.39 Other considerations may be required
in the analysis. This is one of those cases.

[60] Defence Counsel said very little about the tertiary ground. I was
surprised by this fact given that the defence bears the persuasive
burden. He noted that Mr. Jaypoody does not have a history of
“terrorizing the community”. He continued:

On the one hand, this may be a second degree murder with a

very serious (inaudible). On the other hand, some of the
evidence looks at a compassionate deed gone wrong. Tracy
Tassugat talks about the fact that he wanted to get help for his
father. There are other materials that are not before Your
Honour that might be, on both sides. There are statements that
are somewhat contradictory from Levi. That’s not the issue,
because this is not a trial. This is really has he met the onus to
be released pending trial? In my submission, yes. And the
carefully crafted conditions that were proposed, in my
submission, would give the Court confidence that he would
have very, very complete supervision by very responsible
people.40

[61] It will be up to the jury to decide whether there is the slightest air of
reality – given the extensive injuries suffered by Mr. Illingayuk – to the
“compassionate deed gone wrong” defence. Defence Counsel could
have adduced those “other materials” not before the Court but
somehow relevant. And it will be for the jury to consider the
“somewhat contradictory” statements made by Mr. Illingayuk – “he
tried to kill me” versus “he beat me up”. And, I will comment in a
moment on my concerns about the proposed sureties.

38
See, for example, R v Ammaklak, 2008 NUCJ 27, [2008] NJ No 27 (QL); R v Peter, 2014 NUCJ 28,
[2014] NJ No 26 (QL); R v Sateana, 2016 NUCJ 20 (CanLII).
39
R v St-Cloud, supra note 30 at paras 67-71.
40
Transcript of Proceedings (afternoon sitting), supra note 36 at 68.
 17

[62] I do not find Defence Counsel’s submission on the tertiary grounds to

be persuasive.

[63] Mr. Jaypoody has been in continuous pre-trial detention since his
arrest – almost nine months. Clyde River is a small community of
about 1,053 people.41 I agree with Defence Counsel that the
community is aware in a general way about Mr. Jaypoody’s present
situation.

[64] The evidence shows Mr. Illingayuk told several people immediately
after the assault that his son had either tried to kill him or beat him up.
It is community knowledge that Mr. Jaypoody has already spent
almost nine months in pre-trial detention for an incident which led
directly to his father’s death. If I were to release Mr. Jaypoody, and
allow him to return to Clyde River, that news would travel extremely
quickly.42

[65] I do not, however, share Crown Counsel’s assessment of how the

community would react to news of Mr. Jaypoody’s pre-trial release.
The Court put the following scenario to counsel: how would the
reasonable person in Clyde River react to news that Mr. Jaypoody –
after spending almost nine months in detention on a murder charge
and before his preliminary inquiry is even held – was suddenly
released to walk the streets? Crown Counsel’s answer is instructive:

On the tertiary grounds, it’s a murder, and -- if I am struggling,

it’s because I don’t want to be flit [sic], and that, but I think,
and I have alluded to it earlier this afternoon, that on the scale
of what transpires in this territory on a regular basis, the
community’s shock value of what transpired on this case would
not lead to the administration of justice being deconsidered
[sic] if Mr. Jaypoody was released. And I can attest to the fact
that I have discussed that with the RCMP and with my co-
counsel, and we are all in agreement.43

[66] This was a startling assertion. On what possible scale are the
allegations in this case not horrendous?

41
Statistics Canada. 2017. Clyde River, HAM [Census subdivision], Nunavut and Nunavut [Territory] (table).
Census Profile. 2016 Census Statistics Canada Catalogue no. 98-316-X2016001. Ottawa. Released
November 29, 2017. online:https://www12.statcan.gc.ca/census-recensement/2016/dp-
pd/prof/index.cfm?Lang=E
42
This small hamlet reality is also relevant to the issue of how we pick juries in Nunavut. That is an
important issue for another day.
43
Transcript of proceedings (afternoon sitting), supra note 36 at 37.
 18

[67] All our communities are plagued with domestic and family violence,
most of it alcohol induced. The staggering frequency of domestic and
family violence – what Crown Counsel called “regular” – does not
make domestic and family violence, indeed homicides, in our homes
somehow unremarkable. That fact does not mean Nunavummiut find
domestic and family violence to be somehow normal. This Court has
a duty to continue to assert our collective revulsion to domestic and
family violence. The Court must squarely denounce any attempt to
downplay the seriousness of domestic and family violence, or to
normalise it because of its frequency.

[68] I do not share the prosecution’s perspective on domestic and family-

related homicides in Nunavut. In my respectful view, news of any pre-
trial release for Mr. Jaypoody would seriously undermine reasonable
public confidence that the justice system takes domestic and family
violence seriously.

D. Sureties

[69] Defence Counsel presented two potential sureties to the Court: Mr.
Jaypoody’s 56-year-old mother, Dora Jaypoody, and his 70-year-old
step-father, Jayko Ashevak. Both persons testified by telephone from
their home in Clyde River. I was impressed by their frankness and
sincerity. In different circumstances, each one may have been an
appropriate surety.

[70] However, Ms. Jaypoody is employed full-time outside the home from
Monday to Friday. Mr. Ashevak is a hale and hearty elder. When he
was asked whether he will be hunting in the immediate future, he
replied instantly “as often as possible if the weather is good”. Like so
many other Nunavummiut, Mr. Ashevak hunts for sustenance.

[71] These two well-meaning people are not in a position to offer what
Defence Counsel called “very, very complete supervision”. The reality
is that each proposed surety would be unavailable to provide the
necessary day-to-day supervision in this case if I were to release Mr.
Jaypoody.

[72] Mr. Jaypoody has not satisfied his burden on the tertiary ground.
 19

E. Why Gladue sentencing principles do not apply to pre-trial bail

[73] In his written memorandum, Defence Counsel submitted that Gladue

sentencing principles ought to be considered in Mr. Jaypoody’s
circumstances. However, he did not make any oral or written
submissions showing how Gladue sentencing principles might apply
to Mr. Jaypoody. In any event, that was not fatal because in my view,
Gladue sentencing principles do not apply at the pre-trial bail stage.

[74] In 1996, Parliament enacted Criminal Code s. 718.2(e) which directed

sentencing courts henceforth to pay “particular attention” to the
circumstances of aboriginal offenders. In 1999, the Supreme Court of
Canada in R v Gladue explained Parliament’s intention and the full
import of the legislation.44 Judges are to consider the systemic or
background factors relevant to Aboriginal Canadians when crafting a
just and fit sentence.

[75] I have written extensively concerning Gladue sentencing principles in

the context of sentencing Nunavummiut.45 More than 86% of
Nunavut’s population is Inuit. Inuit social governance runs parallel to
the application of pan-Canadian legal norms. Therefore, the norms of
Inuit Qaujimajatuqangit must be considered at every stage of civil and
criminal proceedings in the Nunavut Court of Justice. This includes at
a pre-trial bail – or show cause – hearing. I will say more about that in
a moment.

[76] The law of pre-trial bail, as well as our sentencing principles, are each
codified in the Criminal Code. These laws represent the considered
legislated will of Parliament. From time-to-time, our courts have had
to interpret aspects of these laws. Gladue is a striking example. As
we have seen, the Supreme Court of Canada did not create new law
in that case; the court merely articulated how s. 718.2(e) ought to be
understood and, more importantly, how Parliament’s intention ought
to be implemented when sentencing Aboriginal offenders.

[77] I am aware that there are a number of cases elsewhere in Canada

which say that Gladue sentencing principles apply not only at
sentencing but at the pre-trial bail stage as well. Many, if not most, of
these cases refer back to R v Robinson, a decision of the Ontario
Court of Appeal, as their authority.46
44
R v Gladue, [1999] 1 SCR 688, [1999] SCJ No 19 [Gladue].
45
Most recently in R v Itturiligaq, 2018 NUCJ 31 (CanLII).
46
R v Robinson, 2009 ONCA 205, 95 OR (3d) 309 [Robinson].
 20

[78] R v Oakes, a recent decision of O’Ferrall J of the Alberta Court of

Appeal is a case in point.47 The Oakes case concerned an
application for bail pending appeal following a conviction by a jury for
a second degree murder. The decision is barely one page long. It
appears that the offender, Mr. Oakes, was a member of a
Saskatchewan First Nation. Justice O’Ferrall, sitting alone, accepted
that Gladue sentencing factors applied on his application for bail.
O’Ferrall J’s reasons for doing so are instructive:

Chief Justice Winkler of the Court of Appeal of Ontario in R v

Robinson, 2009 ONCA 205 (CanLII), 95 OR (3d) 309, has held
that Gladue principles apply to the question of bail. From that
I am prepared to assume that Gladue also applies to release
pending appeal. But as in Robinson, very little evidence was
tendered to assist me in a Gladue analysis. I received nothing
in nature of a pre-sentence report giving me the appellant’s
personal history, etc.48

[79] O’Ferrall J based his ‘assumption’ that Gladue sentencing principles

applied to pre-trial bail on Robinson. It is necessary, therefore, to
examine what Robinson actually decided and on what basis.

[80] The Robinson case was decided by a single Ontario Court of Appeal
judge sitting in Chambers. The first reference to Gladue in this very
short decision came near the end when Winkler CJO stated: “it is
common ground” that Gladue sentencing principles apply to pre-trial
bail.49 However, the learned judge made no mention of any statutory
or other legal foundation of this so-called “common ground”.

[81] Neither party in Robinson had provided the court with any Gladue
factors. Justice Winkler stated the accused could bring another bail
application if Gladue sentencing factors amounted to a material
change in circumstances. But then, he stated:

However, I note that the Supreme Court in Gladue [sic], in the

context of sentencing, stated, at para. 79, that “the more violent
and serious the offence the more likely it is as a practical
reality that the terms of imprisonment for aboriginals and non-
aboriginals will be close to each other or the same”. I would

47
R v Oakes, 2015 ABCA 178, [2015] AJ No 561 (QL) [Oakes].
48
Ibid at para 11.
49
Robinson, supra note 46 at para 13.
 21

think that the same practical reality would apply to applications

for judicial interim release.50

[82] Rather than opening a wide door for the pre-trial bail application of
Gladue, he opened it only a smidgen for cases like murder.
Nevertheless, subsequent courts have latched on to the premise and
expanded its parameters beyond what Winkler CJO appears to have
intended.

[83] Two judges North of 60 have taken that approach. In R v Magill,

Ruddy J of the Territorial Court of Yukon ruled that Gladue provides
“indispensable guidance for other decisions that an adjudicator is
faced with”, including pre-trial bail.51 Judge Ruddy, too, based her
reasoning on the Robinson case. She goes further saying that
systemic Gladue factors play an important role in bail:

An accused with a poor employment record, substance abuse

issues and an unstable family and community support network
is more likely to be detained, even though these are the results
that flow from the Canadian history of colonialism, dislocation
and residential schools. A judge has the obligation to evaluate
the application of bail criteria to ensure that the result does not
serve to perpetuate systemic racial discrimination.52

[84] This reasoning was adopted and applied in the Supreme Court of the
Northwest Territories by Shaner J in R v Chocolate. 53 Justice Shaner
also started her analysis by citing Robinson. She then referred both
to Oakes and Magill above as further authorities that Gladue
sentencing factors apply to pre-trial bail.

[85] Thus, we can see the impact a single reported case may have when
judges struggle to do what they believe to be fair in the absence of
statutory authority or clear binding guidance from higher courts.

[86] In my view, it can fairly be said that Robinson, Oakes and the other
following cases are based neither on well-reasoned precedent nor on
the articulation of any actual law. Robinson and the cases which
have followed it are not, in my view, persuasive. Nor are these cases
binding on judges of the Nunavut Court of Justice.54

50
Ibid at para 15.
51
R v Magill, 2013 YKTC 8 at para 24, 113 WCB (2d) 791 [Magill].
52
Ibid at para 26.
53
R v Chocolate, 2015 NWTSC 28, [2016] 11 WWR 575 [Chocolate].
54
There are no reported Nunavut cases which have considered this point of law.
 22

[87] In my view, a persuasive precedent may be found in the well-

researched decision of Agnew J in R v Heathen. 55 In the Provincial
Court of Saskatchewan Heathen case, Defence Counsel had argued
that Gladue sentencing principles applied to pre-trial bail. Judge
Agnew released Mr. Heathen, but later wrote this decision rejecting
the proposition.

[88] Judge Agnew identified two categories of pre-trial bail cases where
judges have ‘run with the spirit’ of Gladue. He called the first category
“a priori” cases – or those where the judge or judges assume that
Gladue sentencing considerations apply to pre-trial bail. He referred
to a second category of cases as those where the judge’s reasoning
is based upon cultural context.

[89] Judge Agnew reviewed the statutory frameworks for pre-trial bail and
sentencing, and noted the different considerations which apply.
Judge Agnew correctly noted that the objectives of pre-trial bail and
sentencing are “completely different”:

Sentencing is the process of imposing just consequences on an

offender for their behaviour, ultimately with the goal of
developing and maintaining a “just peaceful and safe society”.
Bail is more prosaically focused on getting accused persons to
trial so that their guilt or innocence can be established by law,
and protecting the public in the interim”.56

[90] In my view, the key distinction between pre-trial bail and sentencing
lies in the protection and safety of the public: the statutory law of pre-
trial bail is concerned primarily with risk assessment. If the accused is
released:

 Will he abscond?
 Is there a substantial likelihood he will reoffend?
 Is there a substantial likelihood he will interfere
with the administration of justice in his case? And,
 Will his release result in loss of public confidence
in the justice system?

[91] These statutory considerations – based on risk assessment – are as

relevant and necessary for the protection and safety of Inuit and
55
R v Heathen, 2018 SKPC 29, 2018 CarswellSask 166 [Heathen].
56
Ibid at para 8.
 23

Nunavut communities as they are elsewhere in Canada. The

assessment analysis must be based solely upon risk. This is so
because we are dealing with the pre-trial liberty of a person who is
presumed by law to be innocent.

i. The problems with the a priori cases

[92] It was open to Parliament in 1996 when it enacted s. 718.2(e) to

extend what became known as Gladue sentencing considerations to
the law on pre-trial bail. Parliament chose not to do so in 1996. Nor
has Parliament chosen to do so in the intervening 22 years.
Nevertheless, some judges have chosen to ‘run with the spirit’ of
Gladue and to inject new judge-made considerations into the statutory
pre-trial bail framework – ignoring the different objectives of the two
regimes.

[93] In my view, there is no jurisdiction – or authority – for judges to

override Parliament’s will in this area. Stated differently, there is no
legal foundation on which judge’s may assume and find that Gladue
sentencing considerations apply to pre-trial bail law.

ii. The problem with the cultural context cases

[94] Pre-trial bail analysis must focus on risk assessment. Cultural factors
are largely irrelevant to this analysis. Yet, cultural factors and
community standards may still assist the judge or local justice of the
peace without the judicial officer having to engage in spurious judicial
reasoning.

[95] I said earlier that Inuit Qaujimajatuqangit is central to our conception

of justice in the Nunavut Court of Justice. That is not to say, however,
that judges always consider Inuit Qaujimajatuqangit in the context of
Gladue. I will illustrate this seeming anomaly with an example in the
pre-trial bail context.

[96] An accused may be charged with a serious personal injury offence.

He may even be charged with second degree murder. He may have
a troubling criminal record. The secondary ground may be a real
concern. Yet, as part of the risk assessment analysis, the presiding
judge may still be able to order a release on pre-trial bail.
 24

[97] The judge may conclude that releasing the accused into the hands of
an elder in a traditional outpost camp may significantly reduce the risk
of recidivism to an appropriate risk level: away from the idleness
created by too few jobs, away from the stresses of overcrowding,
away from the abuse of legal or bootlegged alcohol, away from the
pressures of negative peer groups, and back to a purposeful and
traditional way of life.

[98] If the judge grants pre-trial bail under these circumstances, he does
so in the context of community standards and Inuit Qaujimajatuqangit.
There is no need for tenuous legal reasoning to justify that outcome
by applying Gladue sentencing considerations to the statutory law of
pre-trial bail.

[99] Having culturally appropriate responses responds to the argument

that the present statutory pre-trial bail regime necessarily perpetuates
the colonialism and racial discrimination of the past.57 As a Gladue
court, the Nunavut Court of Justice keeps the culture, history and
traditions of Nunavummiut at the forefront of all its deliberations.

[100] As I have stated, extending the spirit of Gladue to pre-trial bail is not
supported by statutory law or properly grounded judicial precedent.
Still, Defence Counsel has asked this Court to extend Gladue
sentencing considerations from the sentencing process to the
statutory law of pre-trial bail. Stated another way, Defence Counsel
has asked this Court to create a new set of judge-made pre-trial bail
considerations in Nunavut.

[101] I cannot do so. In my respectful view, this is a task for Parliament

and not the judiciary.

[102] Gladue sentencing considerations cannot assist Mr. Jaypoody

obtain pre-trial bail.

VII. CONCLUSION

[103] In conclusion, Mr. Jaypoody has not satisfied his burden of showing
that his detention is not justified in all the circumstances of his case.

57
See, for example, R v Magill, supra note 51 at para 26.
 25

For the reasons I have stated, his application fails to meet the
threshold of the tertiary grounds listed in s. 515(10)(c).

[104] I deny Mr. Jaypoody’s pre-trial bail request, and I remand him into
pre-trial detention.

[105] He will return to court on December 3, 2018, in Clyde River for his
preliminary inquiry. I direct the preparation of the required removal
order.

Dated at the City of Iqaluit this 29th day of November, 2018

___________________
Justice P. Bychok
Nunavut Court of Justice