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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut
Citation:

R. v. Naglingniq, 2015 NUCJ 36

Date:
Docket:
Registry:

20151113
08-13-429
Iqaluit

Respondent:

Her Majesty the Queen


-and-

Applicant:

Michael Naglingniq

________________________________________________________________________
Before:

The Honourable Mr. Justice Johnson

Counsel (Respondent):
Counsel (Applicant):

B. McLaren
T. Fairchild

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
August 4-5, 2015; September 18, 2015
Criminal Code, s. 264.1(1)(a); s. 733.1(1); Canadian
Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (UK),
1982, c 11, s. 7; s. 12; s. 24

REASONS FOR JUDGMENT

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

I. INTRODUCTION
[1]

On the evening of June 17, 2013, the accused was drunk and
disorderly and was causing enough of a disturbance at his sisters
residence that his brother David called the Royal Canadian Mounted
Police [RCMP] detachment in Iqaluit.

[2]

RCMP constables Garett Moore [Moore] and James Mearns [Mearns]


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

[3]

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


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

[4]

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

[5]

There are two issues before me. First, is the accused guilty of making
the threats and of breaching his probation order? Second, if I find him
guilty of the charges, the accused argues that the charges should be
stayed because of the alleged Charter breaches. In the alternative,
the accused argues there should be a reduction in his sentence
because of the Charter breaches.

II. FACTS
[6]

I make the following findings of fact. In making these findings I have


accepted the evidence of the police officers over the evidence of the
accused because the accused was very intoxicated and had limited
memory about what happened. Some examples from his evidence
are at page 36 of the transcript:
A. I kind of got too drunk and I don't really remember getting picked
up by police.
Q. So you don't really remember what you were doing there?
A. Yes.
Q. Do you remember getting arrested?
A. Yes, a little bit.
{Trial Transcript, August 5th, p 36, lines 18-23}

[7]

At page 38 there were the following questions and answers:


Q. Did you say anything to the police?
A. Yes. I was talking words, bad words, probably swearing.
Q. Do you remember any specific things that you said?
A. Not really. Maybe just -- they were saying I was just gonna shoot
them but I was too drunk. I don't really remember.
Q. So you might have said that; you might not have said it? You don't
know what you said?
A. Yeah, I probably said it. I don't really remember.
{Trial Transcript, August 5th, p 37-38, lines 24-27, 1-4}

[8]

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

[9]

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

[10] When the officers arrived at the detachment they placed the accused
in a cell and removed the handcuffs. The actions of the police and the
accused in the cell were videotaped, but the videotape was lost when
it was purged and recorded over in accordance with the RCMP policy
in force at that time.
[11] Moore told the accused he could use water from the bathroom in the
cell to alleviate the effects of the pepper spray. The effects of the
pepper spray seemed to diminish after the accused was placed in the
cell because he again became abusive. He started kicking the walls
and the cell door. As described by Moore, the accused was kicking so
hard he was concerned the door might come off its hinges. The
accused also threatened to shoot Moore.
[12] Moore consulted with Benoit and they decided that the accused
should be put in a restraint chair. Benoit and Moore then placed the
accused in what is known as a restraint chair. It is a chair that has
arm and leg straps so that when a person is placed in it and the
straps are tightened the person is immobilized.
[13] Benoit was familiar with use of the restraint chair and had seen a
video on its use and read the accompanying manual. He was aware
of an RCMP policy on its use (that was contained in the Affidavit of
Dominic Bell). Attached as exhibit A to this Affidavit is a letter from
Constable Jacob MacKenzie that sets out the RCMP policy on the
use of the restraint chair [Restraint Chair Policy]. He understood that
a prisoner should not be restrained for more than 60 minutes. He
checked on the accused after he was in the chair for 60 minutes and
determined that the accused had not calmed down enough to be
released. He left the cell and the accused remained in the restraint
chair for an additional 1 hour and 41 minutes before he was released.
[14] The accused was not assessed by a medically trained professional.
[15] Benoit was the acting commander and assumed the responsibilities of
the detachment commander, including the role of the Supervisor
under the Restraint Chair Policy. He took no steps to advise the
Detachment Commander of the unusual use of the restraint chair and
the need to preserve the videotape.

[16] There is a major conflict in the evidence of the accused and Moore
and Benoit about an alleged incident of pepper spraying of the
accused while he was in the restraint chair. The accused testified that
he did not think he was pepper sprayed in the police vehicle, but
rather that he was pepper sprayed while he was in the restraint chair.
Moore and Benoit adamantly deny the allegation.
[17] The videotape evidence is not available because it was taped over in
accordance with RCMP policy at the time.
III. CONCLUSION
A. Is the accused guilty of the threat and breach of probation
charges?
(i). Arguments
[18] The accused argues that the threat was made against Moore and not
Mearns. Both officers testified that the threat in the vehicle was made
about Moore. Tufts also testified that the threat was against Moore.
The only evidence of a threat against Mearns was his evidence that
the accused made a threat while he was being put into the cell. The
accused argues that there are serious deficiencies in Mearns
evidence. First of all, he made no handwritten notes about the events
as they were happening. He prepared a supplementary report on the
computer later on the evening of the event, but it was after he had
consulted with other officers.
[19] With regard to both threat charges, the accused relies on R v
Oyukuluk, 2014 NUCJ 33, [2014] NuJ No 31 (QL) [Oyukuluk], to
argue that he did not have the mens rea required to be convicted of
making a threat because he was incapacitated by alcohol and pepper
spray.
[20] While acknowledging the case law goes both ways, the accused
argues that to sustain a conviction for breach of probation, the Crown
must rely on an underlying conviction for breach of the peace and
good behavior clause. I cannot convict the accused until I convict him
of the threatening charge that would constitute a breach of the
requirement in the probation order to keep the peace and be of good
behavior.

[21] The Crown argues that the accused admitted to using pot and being
drunk and disorderly. He admitted he resisted arrest and was abusive
to the officers. Those actions are sufficient to sustain a conviction for
breach of the peace and good behavior clause, regardless of whether
the accused is convicted of making the threats.
[22] The Crown distinguishes Oyukuluk on the facts. In that case, the
accused was a female who was calm before being arrested and then
became upset after she was arrested and uttered a threat to shoot an
officer. Mossip J. looked at the respective size and power distinction
between the accused and the officer and noted that when the
accused made the threat she had no access to a firearm or even
possessed them. The Crown relies on the Northwest Territories
Territorial Court judgment of Gorin J. in R v Koyina, 2014 NWTTC 11,
113 WCB (2d) 182. In that case, a highly intoxicated woman made
insulting comments to a police officer while she was being arrested.
While she kicked the silent patrolman she said Im going to beat you
up, you fucking faggot. Gorin J. held that an intoxicated person could
still have the mens rea for making a threat if the person had an
animus toward the person and that the threat was taken seriously.
[23] The Crown also relied on the unreported case of R v Panikapoocho
{Nunavut Court of Justice, 2015, Court file # 11-14-76}
[Panikapoocho]. In that case, Sharkey J. of this court rejected the
argument advanced in Oyukuluk that if a person who is very
intoxicated threatens to shoot someone they are not responsible if
they do not have access to a weapon.
[24] The Crown submitted that the accused had an operating mind even if
he was intoxicated. He had a memory of some of the events of the
evening and was very adamant that he remembered he was pepper
sprayed while in the restraint chair. He had the capacity to form the
mens rea and had an animus toward the officers and should be
convicted of making the threats.
(ii). Analysis
[25] In Oyukuluk, the female accused made statements captured in
videotape that included the words fuck up and beat up and made a
reference to using guns against the officers child.

[26] Mossip J. considered the classic cases of R v Clemente, [1994] 2


SCR 758, 91 CCC (3d) 1 [Clemente]; and R v Batista, 2008 ONCA
804, 238 CCC (3d) 97 [Batista], that set out the legal requirements for
a conviction for making threats. She noted that the Crown must prove
that the accused made the threats and that the person knew the
threats would be taken seriously. The first requirement is the actus
reus and the second is the mens rea. She then considered the test
set out in Batista and at para. 23 stated:
I must consider what an ordinary reasonable person considering an
alleged threat objectively, informed of all of the circumstances
relevant to his or her determination would include accepting that Ms.
Oyukuluk said the words that she was going to, quote, "fuck up"
Maggie, and she knows that to mean, quote, "beat up", and she said the
words about guns and the RCMP officer's child and what she might or
might not do, as best we could understand it from the audiotape, I must
consider whether a reasonable person, considering whether those
words amounted to a threat at law is, what would an "objective, fully
informed, right minded, dispassionate, practical and realistic" think.
{Oyukuluk}

[27] She concluded that the accuseds actions did not satisfy the actus
reus for a threat using the following analysis:
[33] I believe a reasonable person, fully informed of all of the
circumstances, including the condition of Ms. Oyukuluk, her
incarceration, the condition of her friend who had been screaming for
many minutes at that point, and who had wound her up so so-to-speak,
the fact that she had been moved into her own cell and was losing all
control and saying outrageous things, objectively looking at the entire
context of her, and the relationship between her and the constables,
would not interpret her outrageous words and conduct as a threat to be
taken seriously.
[34] She was an intoxicated, small Inuit woman, locked behind bars,
screaming profanities and nasty words at two constables on the other
side of her cell bars. These words, as Lang, J.A. said, as "misguided,
offensive and inappropriate" as they were, for the above reasons,
cannot meet the legal definition as set out above of a threat with
respect to either Ms. Kilabuk or the child of Cst. Brown. {Oyukuluk}

[28] Mossip J. also found that the mens rea element of the offence was
not satisfied because the accused did not objectively intend the
threats to be taken seriously. She stated:
[35] As to the mens rea of the offence, I am not satisfied beyond a
reasonable doubt that Ms. Oyukuluk knew the words she was saying
would be taken seriously as a threat by the constables. Ms. Oyukuluk
testified that she does not recall making threats to the RCMP officers;
she does not wish bad things for the RCMP. She also testified that she
does not own any guns and that she would never hurt the RCMP
officers' children. {Oyukuluk}

[29] In the case at bar, both Moore and Mearns testified that the accused
made threats to shoot Moore in the police vehicle. Moore also testified
that a threat was made while the accused was placed in the cell.
Moores evidence about the threat in the cell was corroborated by the
independent witness Tufts. However, neither Moore nor Tufts testified
that the accused made a threat to shoot Mearns. The only evidence of
that threat comes from Mearns testimony. I am satisfied that his
evidence is not reliable enough to satisfy the actus reus component of
a threat charge and therefore acquit the accused of the charge
against Mearns.
[30] I am satisfied that the actus reus for the threat against Moore is
satisfied. The question I must now answer is whether he had the
mens rea required. Am I satisfied beyond a reasonable doubt that the
accused meant the threat to be taken seriously? To answer this
question, I must examine all the circumstances and the relationship
between the accused and the officers. He was so intoxicated that he
cannot remember much about what happened in the vehicle. He was
then pepper sprayed and incapacitated so the officers could get him
to the detachment and into a cell. As the effects of the pepper spray
wore off, he resumed his abuse and was eventually put in the restraint
chair.
[31] It is not clear when the threat to shoot Moore occurred. It may have
been before or after he was placed in the restraint chair. If it occurred
when the accused was in the restraint chair it is difficult to see how
any reasonable person could take it seriously because the accused
was completely immobilized. I accept the point made in Panikapoocho
that the presence of a barrier does not necessarily mean that no
threat can be taken seriously. Each case must be decided on its own
facts.

[32] In the final analysis I find I have a reasonable doubt about the mens
rea of the accused and acquit him of the threat against Moore.
[33] The final issue is the breach of probation charge. I am in the school
that believes the breach charge should follow the conviction. Since I
have acquitted the accused on the threat charges, it follows that I also
acquit him of the breach of probation.
iii. Did the police breach the accuseds section 7 and 12 Charter
Rights?
[34] In the event that I am wrong about my conclusions about the charges,
I will briefly examine the Charter arguments.
[35] I am satisfied that the police action in using the restraint chair was
unusual. As Tufts testified, he had only seen it happen once in his 15
years as a guard. It is an extraordinary use of force and the officers
should have been alive to the requirement to do things by the book.
That did not happen in this case.
[36] On the second page of Exhibit A of the Restraint Chair Policy of the
letter on the duties of the member placing the person in the restraint
chair, it states:
If a prisoner is restrained for more than two hours, document the
reason in your notebook and on the file.
When a prisoner is in an approved restraint chair longer than two
hours, where available, an assessment must be conducted by a
medically trained professional
As soon as practicable, advise your supervisor that a prisoner has been
restrained in a restraint chair.

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


Confirm that the prisoner is only restrained for as long as absolutely
necessary.
Confirm that the information supporting the use or continued use of an
approved restraint chair is documented on the operational file,
including verbal comments made by the restrained prisoner.

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Confirm that any prisoner who must be secured in an approved
restraint chair longer than two hours is subject to a medical assessment
where medical staff is available or a risk assessment has been
completed between yourself and a member. {Restraint Chair Policy}

[38] Benoit did not follow the Restraint Chair Policy when he left the
accused in the chair for more than two hours and in failing to have
him assessed by a medically trained professional.
[39] The accused distinguished the unreported judgment of Cooper J. in R
v Nuvaqiq {Nunavut Court of Justice, April 17, 2015, Court file 08-13574 [Nuvaqiq]}. In that case, videotape evidence was also destroyed.
Cooper J. found that the police action did not amount to the
unacceptable negligence standard set out in the leading cases of R v
La, [1997] 2 SCR 680, [1997] SCJ No 30; and R v FCB, 2000 NSCA
35, 142 CCC (3d) 540. She noted that the videotape evidence was
relevant to whether the police assaulted the accused in a cell.
However, she found that the police did not breach the unacceptable
negligence standard because the officers had no way of knowing that
the accused was going to make allegations that the police used
excessive force.
[40] I accept the submissions of the accused and agree that Nuvaqiq is
distinguishable. Benoit should have been aware of the importance of
preserving the videotape evidence because of the unusual use of the
restraint chair. He should have reported it to the detachment
commander so steps could be taken to protect that evidence.
[41] That evidence would clearly have shown who was telling the truth
about the allegation that the accused was pepper sprayed in the
restraint chair. It would also have been relevant in analyzing the
threat charges because it would have shed light on the condition of
the accused at the time he was alleged to have made threats in the
cell. It would have shed light on his condition a short time before when
he was in the police vehicle. I find the police breached the
unacceptable negligence standard and that there was a breach of the
accuseds rights under Charter section 7.
[42] While the videotape evidence would have been determinative of the
excessive force allegations, I decline to find a breach of Charter
section 12 on the evidence before me.

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

Dated at the City of Iqaluit this 13th day of November, 2015

___________________
Justice E. Johnson
Nunavut Court of Justice

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