Decision Content
R v Sunrise, 2018 NWTSC 41 S-1-CR-2017-000165
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
BARRY SUNRISE
Transcript of the Reasons for Decision delivered by The Honourable Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 12th day of July, 2018.
APPEARANCES:
Mr. A. Godfrey Counsel for the Crown
Mr. P. Harte Counsel for the Accused
(Charge under s. 271 of the Criminal Code)
This decision is subject to a publication ban until the trial into this matter has ended pursuant to
s. 525(8)and 517 of the Criminal Code
1 THE COURT: Barry Sunrise faces a charge
2 of sexual assault. This is for events alleged to
3 have happened on May 22nd, 2017. Mr. Sunrise was
4 arrested on May 23rd. He had a show cause
5 hearing before a justice of the peace on May 30th
6 and was ordered detained on the primary and
7 secondary ground. He has been in custody ever
8 since.
9 He had a preliminary hearing and was
10 committed to stand trial in November 2017. A
11 first pretrial conference was held on this matter
12 on January 16th, 2018. Counsel advised at that
13 time that the matter was not ready to be
14 scheduled for trial because results from DNA
15 testing were still pending. It was agreed that a
16 further pretrial conference would be held once
17 the results were known, and this second pretrial
18 conference took place on March 1st. At that
19 point, it was confirmed that the matter was ready
20 to be set for trial. Crown had sent its
21 availabilities for trial before that second
22 pretrial conference. Those availabilities were
23 received February 27th, and defence counsel sent
24 his availabilities the next day. The Crown did
25 have availabilities in September 2018, but
26 defence counsel was not available because another
27 matter of his was already scheduled to proceed
1 over the same time frame. The next dates when
2 both sides were available for trial were in
3 December. The jury trial was scheduled to
4 proceed and remains scheduled to proceed the week
5 of December 10th.
6 The issue of Mr. Sunrise's custodial status
7 came before this Court by operation of Section
8 525 of the Criminal Code. The Crown continues to
9 oppose his release on the primary and secondary
10 grounds.
11 Mr. Sunrise bases his request for review on
12 two things: First, he argues that there have
13 been material changes in his circumstances in
14 three different ways. First, his trial date is
15 now known, which was obviously not the case at
16 the time of the show cause hearing. He points to
17 the time he will have spent in pretrial custody
18 by the time his trial proceeds, which, if
19 credited at the usual ratio of one and a half
20 days credited for each day of remand, would
21 entitle him to credit for just over 600 days if
22 he were to be convicted of this charge and face
23 sentencing.
24 So that is the first element that defence
25 relies on to say there is a change in
26 circumstances. The second is that the DNA
27 results are now known. The testing did not
1 produce any evidence that will assist the Crown
2 in this prosecution. As DNA testing was referred
3 to at the initial hearing and the Crown was
4 arguing that it would likely assist the Crown,
5 Mr. Sunrise says that the negative results that
6 have since been obtained constitute a change in
7 circumstances. The third change is that
8 Mr. Sunrise argues that the place where he
9 proposes to reside now is available in a more
10 long-term way than the proposed residence that
11 was referred to at the time of the original bail
12 hearing.
13 Mr. Sunrise also argues that the justice of
14 the peace may have erred in his treatment of his
15 criminal record. He argues that the justice of
16 the peace may have overemphasized the criminal
17 record and, in particular, the effect of some of
18 the relevant convictions.
19 The Crown's position is that there are not
20 really changes in circumstances here. The Crown
21 notes that the proposed place of residence is a
22 cabin at an unknown address on the Hay River
23 Reserve, that Mr. Sunrise would not be living
24 with the surety, and that it is far from clear
25 that the proposed surety would be in any position
26 to meaningfully supervise Mr. Sunrise if his
27 application is granted. The Crown concedes that
1 the prosecutor who appeared at the show cause
2 hearing, who was a different prosecutor, may have
3 overstated the significance of the fact that DNA
4 testing had been conducted in this case but notes
5 that the prospect of helpful DNA evidence was
6 raised in the context of the tertiary ground, and
7 that this was not the ground on which Mr. Sunrise
8 was detained.
9 I have reviewed the transcript and the
10 materials filed by Mr. Sunrise. First, I do not
11 think that the justice of the peace made any
12 errors that open this matter up for review.
13 It must be said at the outset that some of
14 the submissions that were made by the Crown
15 prosecutor at the initial bail hearing were
16 misguided. In effect, he argued before the
17 justice of the peace that the fact that a sexual
18 assault examination had taken place and DNA
19 testing would be done rendered the Crown's case
20 stronger than if no samples had been collected,
21 and no testing was possible. The flaw in that
22 submission is obvious. The mere fact that DNA
23 testing is done does not mean that the results
24 will help the Crown. Sometimes the results will
25 help the Crown; sometimes the results will assist
26 the defence; oftentimes, the results are neutral.
27 Crown counsel should always be careful not to
1 overstate the case or the strength of the
2 evidence, especially when making submissions in
3 justice of the peace court as justices of the
4 peace are laypeople.
5 In this particular case, however, defence
6 counsel at the show cause hearing very
7 effectively corrected the statements made by
8 Crown counsel and pointed out that the mere fact
9 that DNA testing would be done meant nothing as
10 far as the strength of the Crown's case. And on
11 my reading of the justice of the peace's
12 decision, although some portions of it were
13 inaudible and indiscernible and were not
14 transcribed, he did not appear to have accepted
15 the Crown's submissions on that point. He
16 appeared, to me, to have understood that the DNA
17 was, at that point, a neutral factor. So I do
18 not think that the record supports the idea that
19 the justice of the peace erred in this respect,
20 and, in addition, as noted by the Crown at this
21 hearing, the submissions made about the DNA were
22 made in the context of the tertiary ground. And
23 that is not the ground the accused was detained
24 on.
25 The second error that the defence alleges
26 was made by the justice of the peace has to do
27 with an overemphasis or misuse of the criminal
1 record. In speaking about this issue, the
2 justice of the peace said: (as read)
3 However, Mr. Sunrise, given your
4 criminal record and [there is an
5 indistinct portion here] given the
6 fact that [there is another
7 indistinct portion here] you have
8 been previously convicted of a
9 sexual assault, also you were
10 convicted with break and enter
11 with intent to commit sexual
12 assault, this is particularly
13 concerning to the Court, and
14 having this before the Court, it
15 gives the Court concern that
16 [there is another indistinct part]
17 if you [another indistinct part]
18 were convicted in the past of this
19 type of behaviour, then there is
20 concern that you might well,
21 again, commit this type of
22 behaviour. And, in fact, you are
23 here today accused of a sexual
24 assault.
25 Transcript of the bail hearing, page 22.
26 I can see why defence raises concerns about how
27 the justice of the peace worded his comments and
1 how he expressed his concerns about the criminal
2 record. But the comments were also tied in with
3 the alcohol abuse issue and the failure of the
4 proposed plan to address the alcohol issue which
5 seemed to be at the root of the accused's
6 problems with the law.
7 The secondary ground of detention is
8 concerned with public safety. The issue to be
9 decided is not guilt or innocence of the accused
10 on the offence charged. As always, with bail, it
11 requires a risk assessment. Past conduct is
12 relevant to that assessment. Public safety
13 concerns are enhanced when a person who faces a
14 charge for a crime of violence has a demonstrated
15 pattern of committing violent crimes, and this is
16 especially so when the record also demonstrates a
17 pattern of breaches of court orders because the
18 whole point of a release order is to craft
19 conditions that will address the public safety
20 concerns that exist. If the Court cannot have
21 confidence that its orders will be followed, then
22 that means that, realistically, the risk cannot
23 be managed. That is the context in which I
24 understand the comments of the justice of the
25 peace in this case, and I do not find that he
26 erred in his treatment and use of the criminal
27 record.
1 The next question is whether there has been
2 a material change in circumstances that opens the
3 door to a review by this Court. The Crown takes
4 issue with the suggestion that there has, in
5 fact, been such a change. As I have already
6 mentioned, the defence relies on three things.
7 First, the timing of the trial is now known.
8 Second, the cabin where the accused would live
9 appears to be available to him indefinitely as
10 opposed to the accommodations that were talked
11 about at the initial bail hearing. And third,
12 the outcome of the DNA testing.
13 The trial date was not known at the time of
14 the bail hearing, but that would almost
15 inevitably always be the case. That cannot, in
16 itself, constitute a change in circumstances in
17 the context of bail reviews. On a review
18 pursuant to Section 525 of the Code, one of the
19 considerations is whether there has been
20 inordinate delay in getting the matter to trial.
21 Here, by the time this trial proceeds, if the
22 accused remains detained, there will have been a
23 period of remand time that is lengthy, and I can
24 understand that from the perspective of the
25 accused, this is of concern. At the same time,
26 the time between the charge and the proposed
27 trial date is not out of line with what can be
1 expected for a person to have a jury trial.
2 Trial dates are set based on the availability of
3 witnesses, counsel, and of the Court. It goes
4 without saying that there are modes of trial that
5 allow quicker trial dates than a jury trial
6 election. People have the right to choose to be
7 tried by a jury, but one of the consequences of
8 that choice is that there may be a longer delay
9 before trial. That is just the reality, in
10 general, in most places, I expect, but certainly
11 it is in this jurisdiction.
12 This Court is a circuit court. It sits in
13 various communities on criminal and sometimes
14 family matters. It is a generalist court that
15 has four resident judges tasked with hearing all
16 the cases that come before the Supreme Court in
17 this jurisdiction.
18 I actually expect that the time within which
19 people have a jury trial in this jurisdiction is
20 faster than in many other places. In this case,
21 the trial will be held within a year and four
22 months of the alleged events. As I said, I am
23 sure that it does seem like a very long time for
24 the person who is awaiting trial on remand and
25 probably also for witnesses, but it is far from
26 unreasonable, and, on its own, it is not the type
27 of delay that could justify release in the
1 framework of Section 525 of the Code.
2 Submissions were made about the remand time
3 and the credit it would correspond to in the
4 event of conviction. Again, I understand the
5 argument, but this is not a situation where even
6 enhanced credit is beyond the range of sentence
7 that could be expected to be imposed if the
8 accused is convicted after trial, considering the
9 nature of the allegations and the extensive
10 criminal record which includes two directly
11 related convictions.
12 The results of the DNA testing were not
13 known at the time of the initial bail hearing.
14 Now they are known, and they are not helpful to
15 the Crown. But those results, as well as the
16 comments made by defence counsel at the hearing,
17 about the fact that all the witnesses to be
18 called at this trial were consuming alcohol at
19 the time of the events, all of that goes to the
20 strength of the Crown's case, which is a more
21 directly relevant and compelling factor under the
22 tertiary ground. The strength of the Crown's
23 case is not completely irrelevant to the
24 secondary ground, but in this case, it was not
25 the primary consideration of the justice of the
26 peace in addressing public safety concerns.
27 As for the release plan, there is no
1 question it is different, and perhaps that
2 constitutes a change in circumstances, but I am
3 not convinced that it is a change of
4 circumstances that actually assists the accused.
5 It does seem that the cabin where it is proposed
6 he would stay is available to him indefinitely;
7 whereas, the proposed surety at the bail hearing,
8 the original bail hearing, candidly acknowledged
9 that many people lived in this house and that he
10 could make a bedroom available to the accused
11 "for a period of time". That left some questions
12 at the time as to how long that room would be
13 available to the accused. However, this was not
14 something that appears to have influenced the
15 justice of the peace's decision at the original
16 bail hearing.
17 There is not a lot of evidence before me
18 about the person who is being proposed as a
19 surety now. He has signed an acknowledgement of
20 surety form confirming that he understands what
21 the obligations of the surety are, but there is
22 no affidavit from him. There are very few
23 details about the cabin where the accused would
24 stay. All that is said is that it is halfway
25 between the river and the house where the surety
26 resides.
27 I find that in some respects, this plan is
1 weaker than the one proposed initially as far as
2 the level of supervision that the surety could be
3 expected to provide. The accused would live in
4 the cabin, not with the surety. The plan
5 contemplates, therefore, less immediate
6 supervision than the plan that was presented at
7 the initial hearing, and the absence of details
8 about the exact location of the cabin, its
9 distance from the house where the surety lives,
10 makes assessing whether there could be meaningful
11 supervision even more difficult.
12 I already mentioned aspects of the accused's
13 criminal record. It is a very extensive record.
14 He has been convicted numerous times for failing
15 to appear in court. He has been convicted for
16 escaping lawful custody, and he has numerous
17 other convictions for failing to comply with
18 court orders. He also has related convictions:
19 one for sexual assault and one for break and
20 enter and commit sexual assault. Although the
21 justice of the peace referred to it as a break
22 and enter with intent, the record has it as a
23 break and enter and commit sexual assault, and
24 that is relevant to the secondary ground.
25 Courts always have to be cautious not to
26 allow such a criminal record to overtake the
27 entire analysis, but at the same time, a criminal
1 record like this one cannot be overlooked either.
2 It raises significant concerns under the primary
3 and secondary grounds.
4 In my view, the plan being proposed now is
5 not as strong in terms of supervision as the one
6 that failed to persuade the justice of the peace
7 at the original bail hearing. It does not
8 alleviate the primary and secondary ground
9 concerns, nor do the changes in circumstances
10 that the defence relies on.
11 For those reasons, the application for
12 release is dismissed, and detention will
13 continue.
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15 PROCEEDINGS ADJOURNED
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1 CERTIFICATE OF TRANSCRIPT:
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3 I, Roxanne M. Johanson, certify that the
4 foregoing pages are a complete and accurate
5 transcript of the proceedings taken down by me in
6 shorthand and transcribed from my shorthand notes
7 to the best of my skill and ability.
8 Dated at the City of Calgary, Province of
9 Alberta, this 3rd day of August 2018.
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14 Roxanne M. Johanson, CSR(A)
15 Official Court Reporter
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