Supreme Court
Decision Information
Transcript of the s. 525 Bail Review Decision
Decision Content
R v PEA'A, 2018 NWTSC 53 S-1-CR-2018-000109
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
BENJAMIN PEA'A
_________________________________________________________ Transcript of the s. 525 Bail Review Decision delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on August 27, 2018.
_________________________________________________________
APPEARANCES:
Mr. A. Godfrey: Counsel for the Crown
Mr. P. Harte: Counsel for the Accused
(Charges under s. 271, 151, 145(3), 145(5), 145(2)(a)
of the Criminal Code)
1 THE COURT: Benjamin Pea'a faces a number
2 of summary conviction charges. He had a
3 show-cause hearing on July 27th, 2018, and was
4 ordered detained by the justice of the peace. He
5 now applies for a review of his detention.
6 The charges that he faces stem from a series
7 of alleged events spanning over the course of a
8 lengthy period of time, and I am going to refer
9 to those in chronological order. On Territorial
10 Court File 2017-655, he is charged with sexual
11 assault, sexual interference, and breach of a
12 no-contact order with the alleged victim. All
13 three offences are alleged to have been committed
14 between July 1st, 2016, and August 31st, 2016.
15 He has pleaded not guilty to those charges, and
16 the trial is scheduled to proceed November 14th,
17 2018. The allegations on that matter are that
18 the complainant and other youths were staying at
19 a hotel in Yellowknife. They were on their way
20 to Deline. The accused was participating in the
21 trip as well. The complainant alleges that, at
22 one point, they found themselves alone in a room,
23 and he attempted to kiss her and grab her from
24 behind. She was able to get away and reported
25 this to police. The accused was charged and was
26 on process. The process included a no-contact
27 order. She alleges that he breached the
1 no-contact order twice.
2 There was, at one point, another file,
3 Territorial Court File 2017-2264. The
4 allegations were of failing to attend court on
5 May 31st, 2017. That charge has since been
6 withdrawn.
7 There is, on Territorial Court File
8 2018-939, a charge for failing to appear on
9 February 27th, 2018. That date had been
10 scheduled as a date to confirm a trial date
11 tentatively scheduled in March 2018 on the
12 three-count Information involving the sexual
13 assaults and the breaches of undertaking. The
14 accused failed to appear on the February 27th
15 date, so the trial date was cancelled. On this
16 charge, Mr. Pea'a has pleaded guilty, and his
17 sentencing has been adjourned to November 14th
18 with the view of dealing with all his matters at
19 once.
20 On Territorial Court File 2018-1368, there
21 is a two-count Information. The first is an
22 assault alleged to have happened on July 14th,
23 2018, and the second is for failing to comply
24 with a reporting condition on the same date. The
25 allegations in support of those charges are that
26 the complainant, who is an adult woman, reported
27 that he assaulted her at her house by choking
1 her. She alleges that this occurred in the
2 presence of her children. Officers who responded
3 to the complaint noted bruising on her neck. As
4 they were dealing with this investigation, police
5 noted that Mr. Pea'a was on reporting conditions
6 and that he had failed to comply with this
7 requirement, and that led to the fail-to-report
8 charge. My understanding from what I have heard
9 is that it is intended that this trial would
10 hopefully proceed in November as well if
11 not-guilty pleas are entered. These matters are
12 in Territorial Court tomorrow for plea.
13 The plan put forward at the bail hearing in
14 front of the justice of the peace was that the
15 accused would live with his sister in Wekweeti.
16 There is no RCMP detachment in that community.
17 The JP was told that it takes 2 to 3 hours for
18 RCMP to get there if they are called. The
19 community is serviced out of the Behchoko
20 detachment. They do regular patrols there, but
21 there is not the same police presence in the
22 community as in communities where there is an
23 actually detachment, obviously.
24 The proposed surety testified at the hearing
25 before the justice of the peace. She was not
26 called at the hearing before me, and the Crown
27 did not ask to cross-examine her. Counsel were
1 content with my relying on the evidence she gave
2 at the hearing in July, which counsel advised
3 continues to be current. She is the accused's
4 sister and is 28 years old. She confirmed that
5 she was willing to supervise him and that he
6 could live with her. She lives with her two
7 children, aged 6 and 2, in a house that belongs
8 to her grandmother. There is room for him to
9 stay until his matters are dealt with. She works
10 for the Wekweeti Development Corporation and
11 manages the store, the hotel, and the
12 corporation. She testified that he could work
13 where she works and that she would be able to
14 supervise him during the day. The only time
15 where she would not be with him at the workplace
16 would be over the lunch hour, when she goes home
17 to prepare lunch for her children. She testified
18 that she does not go out, does not drink alcohol
19 when she is in the community, and there is no
20 alcohol in her home. She testified that if the
21 accused did not follow his conditions, she would
22 call the police. She testified she understands
23 her obligations as a surety and is prepared to
24 carry those out for as long as is needed.
25 It seems, at the time of the hearing before
26 the justice of the peace, that it was
27 contemplated that the trial into at least some of
1 these matters would be held in August. The
2 proposed surety said she was prepared to
3 supervise the accused until then. Now the
4 matters are scheduled to proceed in November, but
5 there is nothing before me that suggests that she
6 is not prepared to supervise him until then. She
7 also said she was prepared to ensure that the
8 accused has a plane ticket to return to Behchoko
9 for court.
10 One of the things that came up during her
11 evidence was the whereabouts of the complainants.
12 She confirmed that, to her knowledge, the adult
13 complainant lives in Behchoko. As for the
14 complainant on the sexual assault matter,
15 Ms. Pea'a testified that she was only rarely in
16 Wekweeti. She believed that she worked for the
17 Tlicho government and was there for the summer
18 for that reason. This, as I will get into
19 further, turned out to be inaccurate.
20 At the bail review before me, the Defence
21 put forward the same release plan as the one that
22 was presented at the original hearing. It is now
23 undisputed that the surety was mistaken when she
24 was talking about the whereabouts of the
25 complainant on the sexual assault allegations.
26 She was talking about someone else, and this
27 mistake in identity is one of the bases for the
1 accused's request for a review and why he says
2 his detention is not necessary. The Defence also
3 argues that the justice of the peace does not
4 appear to have taken into account that Mr. Pea'a
5 is an indigenous offender when considering the
6 effects of his criminal record on his release
7 application and his release application more
8 generally. The Defence argues that although
9 there are a number of breaches of court orders on
10 the record, some were alcohol-related; for
11 example, the two most recent convictions for
12 breach of probation (failures to keep the peace
13 from 2015) were alcohol-related. Defence also
14 noted that the failure-to-appear conviction is
15 somewhat dated. It goes back to 2011. Defence
16 argues that, in light of the strong level of
17 supervision contemplated by the plan, the
18 criminal record should not be of great concern to
19 the Court on this application.
20 Although the Defence did not argue this as a
21 discrete ground for a review, counsel noted that
22 the justice of the peace's reasons were very
23 brief and not particularly clear. Among other
24 things, he did not address the release plan in
25 any meaningful way. He did not deal with the
26 submission about how the accused's circumstances
27 should impact on the relevance of his criminal
1 record. He made reference to having concerns for
2 the safety of both complainants, whereas, on the
3 facts before him, only one was believed to live
4 in Wekweeti.
5 The Crown does not dispute that the person
6 the surety testified about at the original
7 hearing was not the complainant on the sexual
8 assault allegations. Since then, the Crown has
9 tried to clarify the whereabouts of this
10 complainant but at the time of the hearing only
11 had partial information on this point because she
12 has been difficult to reach.
13 What counsel was able to tell me was that
14 the complainant had been in Ottawa for some time;
15 that the last time the Crown's office was in
16 contact with her, she had indicated she would
17 return to the Northwest Territories in the middle
18 of this month. She was unsure where she would be
19 residing. There was a possibility that she would
20 return to Wekweeti, but she did not have any firm
21 plans at that point.
22 The Crown maintains its objection to release
23 on the primary and secondary grounds. The Crown
24 points to how dated the first set of charges are
25 and to the fact that the accused's failure to
26 appear at the February date to confirm the March
27 trial date resulted in significant delay already.
1 The Crown is concerned about further delay that
2 could arise if the accused fails to appear again.
3 With respect to the secondary grounds, the
4 Crown's concerns stem largely from the fact that
5 there is no police detachment in Wekweeti, which
6 has an impact on the degree of meaningful
7 supervision the authorities can exercise outside
8 the supervision that the surety can offer. An
9 added concern is the response time should there
10 be any issue. The Crown also notes that, aside
11 from the criminal record, the current set of
12 allegations raise concern about the accused's
13 ability or willingness to comply with release
14 terms.
15 Before I turn to the analysis of the issues
16 raised by this bail review, I do want to make a
17 few comments about the importance for justices of
18 the peace to provide reasons when they render a
19 decision about bail.
20 The justice of the peace delivered his
21 decision immediately after counsel finished their
22 submissions. The decision reads as follows:
23 Looking at the plan put forward by
24 defence, I agree with the crown. I
25 have some serious concerns about the
26 telephone line contact. I have
27 concerns about the primary, the
1 safety of the victim in both, and the
2 fact that the person is not far away,
3 and that, even though the accused is
4 working or will be working, it still
5 leaves me grave doubts as to how much
6 he will be covered or be supervised.
7 So I'm not -- on primary and
8 secondary grounds, I'm not granting
9 release.
10 The right not to be denied bail without just
11 cause is fundamentally important and
12 constitutionally protected. As I said in
13 delivering another bail review decision earlier
14 today, the Supreme Court of Canada described this
15 right in R v Antic, 2017 SCC 27, as "an essential
16 element of an enlightened criminal justice
17 system" and said it "entrenches the effect of the
18 presumption of innocence at the pretrial stage of
19 the criminal trial process and safeguards the
20 liberty of accused persons."
21 Any decision that has the consequences that
22 a decision on bail has needs to be explained by
23 the decisionmaker. The importance of providing
24 reasons in other contexts was emphasized by the
25 Supreme Court of Canada in R v Sheppard. In that
26 case, the Supreme Court said that reasons serve a
27 number of important purposes, including
1 accountability for decisionmaking and
2 reviewability of decisions. These principles are
3 also relevant in the context of decisions about
4 bail.
5 A person who is ordered detained at the
6 pretrial stage is entitled to understand why the
7 decisionmaker has come to the conclusion that
8 this was necessary, and, if an accused is
9 released over the Crown's objections,
10 complainants, witnesses, and members of the
11 public are entitled to know why that decision was
12 made, particularly when the allegations are
13 serious and raise public safety concerns.
14 Reasons are essential for there to be
15 accountability and transparency in the
16 decisionmaking process. Of course, when there is
17 a jury election, bail decisions are covered by
18 publication bans for periods of time, so the
19 public at large may not have immediate access to
20 them through media reports, but they are still
21 part of the record, and those publication bans
22 cease to be in effect when the trial has been
23 completed, which means the transparency is still
24 there.
25 Equally importantly, there is the issue of
26 reviewability of the decision. In the context of
27 bail reviews, the Supreme Court has made it clear
1 in R v St-Cloud that in this Court, after a
2 justice of the peace's decision on bail, the door
3 will not always be open to review. Among the
4 things that open the door to review by this
5 Court, aside from the statutory reviews pursuant
6 to Section 525, review will be open if the
7 justice of the peace has erred in law, if the
8 decision by the justice was clearly inappropriate
9 because the justice who rendered it gave
10 excessive weight to one relevant factor or
11 insufficient weight to another.
12 This particular case has come before the
13 Court by operation of Section 525 of the Code, so
14 the issue does not arise in the same way, but the
15 point is that any time a justice of the peace
16 delivers a bail decision, that decision could be
17 subject of a review application at the instance
18 of the Crown or of the accused; therefore,
19 reasons must be given that will enable the
20 reviewing Court to carry out its function.
21 The Crown noted at the hearing into this
22 application that the justice of the peace did
23 provide some reasons but fairly acknowledged that
24 they were very brief; and that, they were. It
25 would have been very helpful if the justice of
26 the peace had elaborated more on the nature of
27 his concerns for the safety of both complainants,
1 including the one who lived in Behchoko,
2 especially considering that the focus of the
3 Crown's submissions at the bail hearing was
4 concerns for the safety of only one of the
5 complainants, the one who was, at the time,
6 believed to live in Wekweeti. It would also have
7 been helpful for the justice of the peace to
8 explain why the proposed plan did not address his
9 concerns and for him to have addressed the
10 defence's submissions about the lack of
11 significance of the accused's criminal record in
12 light of the circumstances.
13 If what was at issue at the review before me
14 was how the justice of the peace weighed the
15 various factors or whether his decision was
16 clearly inappropriate within the meaning of
17 St-Cloud, I have to say it would be extremely
18 difficult for this Court to engage in the
19 analysis it is required to undertake.
20 I make these comments not to be critical but
21 simply to convey the importance for justices of
22 the peace to endeavor to explain how they have
23 arrived at any given decision at the conclusion
24 of the bail hearing. To do so may require taking
25 a short adjournment before delivering the
26 decision, but given the importance of bail
27 decisions, given what is at stake, in my
1 respectful view, it is time well spent to ensure
2 that the main issues raised by each of the
3 parties have been properly addressed.
4 Turning to the question I must decide on
5 this application, it is clear that at least part
6 of the information that caused concern to the
7 justice of the peace was his belief that one of
8 the complainants was present in the community
9 where it was proposed the accused would be
10 released, and that was inaccurate because the
11 surety confused that complainant with another
12 person. This alone is a reason to revisit the
13 issue of bail, quite apart from any deficiencies
14 that may exist with the reasons provided by the
15 justice of the peace for ordering detention.
16 Other things that have changed about the
17 circumstances are that one of the breach charges
18 that the accused faced has been withdrawn. That
19 is somewhat balanced out by the fact that, on the
20 failure-to-appear charge, he has now pleaded
21 guilty, and so, he has acknowledged that he did
22 not appear on the date that had been scheduled to
23 confirm the March trial date.
24 The primary ground is concerned with whether
25 the accused's detention is necessary to ensure
26 that he will attend court. In the circumstances
27 of this case, the concern is not really about the
1 accused fleeing the jurisdiction, disappearing
2 forever, or anything of that nature. His ties
3 are with the NWT. The concern is more that, if
4 he fails to attend his November trial date, there
5 will be yet another delay on a matter that has
6 been adjourned multiple times and is already 2
7 years old. In this jurisdiction, such a delay is
8 unheard of for dealing with summary conviction
9 matters and well above what the Supreme Court has
10 said is reasonable in the context of matters
11 going to trial in the Territorial Court.
12 The accused already has a conviction for
13 failing to attend court. He has now pleaded
14 guilty to having failed to appear when these
15 matters were to be spoken to to confirm a trial
16 date. This raises very real concerns about
17 whether he can be trusted to attend court at the
18 currently scheduled date. The surety can make
19 arrangements for him, but, ultimately, he is the
20 one who has to get on the plane and attend court
21 to face these charges and the possible
22 consequences of being found guilty, if this is
23 what ends up happening.
24 The secondary ground is concerned with
25 public safety and interference with the
26 administration of justice. Here, the accused was
27 released after being charged with offences of a
1 sexual nature against a young person. He is
2 charged with having breached twice a no-contact
3 condition with respect to that witness. He has
4 failed to appear on that matter, as already
5 noted, and he now faces a charge for a further
6 crime of violence as well as with not complying
7 with a reporting condition.
8 I agree with defence counsel that a criminal
9 record must be examined in the context of the
10 circumstances of the offender and that, for
11 example, breaches of court orders can sometimes
12 show little more than the fact that a person has
13 a substance abuse issue and has been released on
14 terms that he or she simply could not be expected
15 to follow.
16 In this case, the evidence presented by the
17 accused is that he has effectively been homeless
18 and couch-surfing for a long period of time, and
19 he has only had sporadic employment. His
20 criminal record cannot be read in isolation from
21 those circumstances. At the same time, this is
22 an accused who has, on this string of charges,
23 been granted bail, not just once but multiple
24 times. He was trusted to comply with conditions
25 despite his record for noncompliance. The fact
26 that his personal circumstances provide an
27 explanation and context for his conduct does not,
1 in and of itself, remove the concerns that this
2 conduct gives rise to.
3 Weighing against these concerns, the accused
4 presents a release plan that has some strengths
5 in that he would work, this work being provided
6 by his surety and, therefore, be under her
7 supervision most of the waking hours. Given that
8 there is no police presence in that particular
9 community, there will be very little by way of
10 external supervision aside from that of the
11 surety, so, in reality, the strength of this plan
12 stands or falls with the strength of the surety.
13 Given the accused's track record for
14 compliance, without someone willing to supervise
15 him and being willing to risk losing money if the
16 duties are not carried out adequately, it would
17 not be realistic to contemplate release.
18 Reporting through a landline is really the only
19 means of reporting available under the
20 circumstances. It is far from perfect, but it is
21 something. There will be limited possibilities
22 for random curfew checks and no possibility for
23 immediate intervention if problems arise. At the
24 same time, it is not even known at this time if
25 the complainant will return to Wekweeti. In
26 addition, the right to reasonable bail is
27 constitutionally protected for everyone in this
1 country, no matter which community they live in
2 and where their ties are located.
3 I do have concerns under both grounds but
4 especially under the primary ground. At the same
5 time, bearing in mind that these are all summary
6 conviction offences and that the accused's
7 criminal record is relatively limited, I am not
8 satisfied that pretrial detention is the only way
9 to alleviate those concerns.
10 I am going to grant the application, and I
11 am going to release the accused, but on very
12 strict conditions, which will place considerable
13 burden on his surety. If she is unable to follow
14 through on the things she told the justice of the
15 peace she could do, she will need to contact
16 police, and the accused will have to be taken
17 back into custody. I trust that defence counsel
18 will make sure that she realizes this and takes
19 it seriously. If there are any breaches of these
20 conditions, she will have to answer for the steps
21 that she has taken to supervise him, and if she
22 does not satisfy the Court that she has done
23 everything that she could to ensure compliance,
24 she will face forfeiture.
25 Because of the delay and of primary-ground
26 concerns, I am not prepared to have the accused
27 released until his travel plans for the November
1 court dates are actually made and proof has been
2 provided to the RCMP and to the court registry.
3 In addition, in order to ensure that the matters
4 do proceed as scheduled, I will require him to
5 surrender himself into the custody of the RCMP
6 some days ahead of his actual court date. That
7 way, if he does not turn himself in, police will
8 have time to apprehend him and ensure that he is
9 there to face these charges.
10 For those reasons, I am granting the
11 application and ordering that Mr. Pea'a can be
12 released on a recognizance. This will be with
13 Bianca Pea'a as his surety. She will be
14 responsible for $1,000 without deposit on that
15 recognizance if there is any breaches, and
16 Mr. Pea'a will also be responsible for a separate
17 $1,000 without deposit if he breaches. The
18 conditions of release will be as follows. Listen
19 carefully, Mr. Pea'a. These are the conditions
20 you will be bound by between now and your trial
21 date. The first is to keep the peace and be of
22 good behaviour. You know what that means. The
23 second is to attend court as required. You also
24 know what that means. Now, I have a question
25 because, in the transcript, there was reference
26 to House 24A in Wekweeti being the house of --
27 where Bianca Pea'a lives, but on the form of
1 recognizance of surety, it said 42A, so I do not
2 know which is right, but someone will have to
3 find out and let the clerk know.
4 It will take a while before these can be
5 perfected, so I will just ask, Mr. Harte, that
6 you clarify this with the surety and just let the
7 Court know. So it is either 24A or 42A.
8 Whichever it is, but the grandmother's house.
9 THE ACCUSED: If it was 42, it would have
10 been uptown and then 24 is downtown, so I think
11 it's 24. It kind of got mistaken from them
12 because she used to live in Whati, and that was
13 at 42, the House A unit, so I think she got that
14 mistaken and it's supposed to be 24 house --
15 house unit.
16 MR. HARTE: I'll make sure that the
17 correct number is --
18 THE COURT: All right. See if we have the
19 correct house, and if there is any confusion, we
20 are talking about Bianca Pea'a's house, whatever
21 the number is.
22 The other condition is that you are to
23 remain in Wekweeti except for the purpose of
24 attending court. You are to abstain absolutely
25 from the possession and consumption of alcohol.
26 You are to provide a sample of your breath upon
27 demand to a police officer who has reasonable
1 grounds to believe you have been consuming
2 alcohol. So if they ask you for a breath sample,
3 you have to give it to them.
4 You are going to abide by a curfew and be
5 inside that residence between 10:00 p.m. and
6 7:00 a.m. except if you are required to be at
7 work. 10 o'clock at night, 7 o'clock in the
8 morning, you have to be inside the house. You
9 are to follow any house rules imposed by Bianca
10 Pea'a. This is so that she has -- she is the
11 only person who can actually supervise you
12 because there is no police officers there, so I
13 want to give her the control that she might need
14 in order to be able to discharge her obligations.
15 The next condition is going to be that you
16 maintain employment under her supervision. So if
17 she says you will go work as a cook, that is what
18 you will do. If she says you do some other work
19 under the umbrella of the places she has some
20 control over, then you just follow her directions
21 in that regard. No contact, direct or indirect,
22 with Star Beaulieu or Lilah Judah. That is
23 straightforward enough.
24 You are to provide proof of purchase of your
25 travel arrangements to the court registry and to
26 the RCMP. The requirements for this travel are
27 going to be that you travel the most direct route
1 available, and those travel dates must be such
2 that you are able to turn yourself into the
3 custody of the RCMP before 4:00 p.m. on Friday,
4 November the 9th.
5 The next condition is whatever date you
6 travel, immediately upon arriving, you will go
7 directly to the RCMP detachment to turn yourself
8 in to their custody.
9 The next condition is you will report by
10 landline to the RCMP detachment in Behchoko
11 within 48 hours of your return to Wekweeti. So
12 within 2 days after you arrive in Wekweeti, you
13 report to them by phone, using that landline, and
14 after, you report on Mondays, Thursdays, and
15 Saturdays between 10:00 a.m. and 4:00 p.m. All
16 of these will be written down for you.
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17 |
MR. |
GODFREY: And just -- if I could, Your |
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18 |
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Honour, Saturday, the -- there is no clerk at the |
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19 |
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Behchoko RCMP, and I don't believe there would be |
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20 |
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anybody answering the phone on the Saturdays. |
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21 |
THE |
COURT: Same with Sundays, I take it? |
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22 |
MR. |
GODFREY: Yes. |
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23 |
THE |
COURT: Okay. So do you think Monday |
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and Thursday would be sufficient? |
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25 |
MR. |
GODFREY: Yes, that would be fine. |
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26 |
THE |
COURT: All right. So Monday and |
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27 |
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Thursday, not Saturday. |
1 The next condition is you will present
2 yourself at the door of the residence or answer
3 the landline if a member of the RCMP or a bail
4 supervisor conducts a curfew check. This is just
5 to make sure you are following that condition.
6 You are not to be in possession of a
7 firearm, crossbow, prohibited weapon, restricted
8 weapon, prohibited device, ammunition, prohibited
9 ammunition, or explosive substance. Most of
10 those things probably do not apply to you, but,
11 basically, you cannot be in position of those
12 types of weapons.
13 Now, I will just indicate that it is my
14 intention that conditions that I have numbered as
15 11 and 12, so the ones that relate to the travel
16 arrangements and the surrendering into custody,
17 be replaced by similar conditions achieving the
18 same purpose if, for whatever reason, there is a
19 change in the trial date. So that could be done
20 by way of written application, if it can be
21 worked out between counsel, or through another
22 court appearance, but my main concern, as will be
23 obvious from everything I have said, is that the
24 matters do proceed to trial when they are
25 scheduled and that there is no further delay due
26 to a failure to attend.
27 So it may take some time before all of this
1 is worked out. Until then, of course, Mr. Pea'a
2 will have to remain in custody, but once these
3 requirements have been satisfied and the surety
4 has signed the recognizance, he will be released
5 on those conditions.
6 -----------------------------------------------------
7 CERTIFICATE OF TRANSCRIPT
8
9 I, the undersigned, hereby certify that the
10 foregoing pages are a complete and accurate
11 transcript of the proceedings taken down by me in
12 shorthand and transcribed from my shorthand notes
13 to the best of my skill and ability.
14 Dated at the City of Edmonton, Province of
15 Alberta, this 7th day of September, 2018.
16
17 Certified Pursuant to Rule 723
18 of the Rules of Court
19
20
21 __________________________
22 Joanne Lawrence
23 Court Reporter
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