Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Ugyuk, 2020 NUCJ 27

Date: 20200713
Docket: 25-19-45, 25-19-76, 25-19-77, 25-20-26, 25-20-42,
25-20-43

Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Tyson Ugyuk

________________________________________________________________________

Before: Madam Justice Cooper

Counsel (Crown): B. Flight

Counsel (Accused): S. Paddock

Location Heard: Iqaluit, Nunavut

Date Heard: June 29, 2020
Matters: Application for bail review pursuant to Criminal Code of
Canada, RSC 1985, c C-46, s. 520

REASONS FOR JUDGMENT

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

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I. INTRODUCTION

[1] This an application by Tyson Ugyuk for a bail review pursuant to s.

520 of the Criminal Code.

[2] Mr. Ugyuk has been in custody since April 17, 2020. He had a show
cause hearing on April 22, 2020 and was denied bail on the grounds
that his detention was necessary for the protection or safety of the
public, including any substantial likelihood that he will reoffend or
interfere with the administration of justice if released. This is
commonly referred to as the secondary grounds for detention.

[3] The bail review application was heard on June 29, 2020.

II. OUTSTANDING CHARGES

[4] Mr. Ugyuk currently has the following charges pending.

A. June 24, 2019

[5] On this date RCMP responded to a complaint involving Mr. Ugyuk. He

was located outside the local Coop Store. As the police walked
towards him with the intention of arresting him, Mr. Ugyuk walked
away from them at a quick pace. He was told to stop and that he was
under arrest but he continued to walk away. Within what seems to be
a few minutes the police were able to effect an arrest. As a result of
the initial complaint and his failure to comply with the police direction
upon arrest Mr. Ugyuk was charged with 5 offences. Following his
arrest he was released by a Justice of the Peace on a Recognizance.

[6] At some point between July 15 and August 14, 2019, Mr. Ugyuk was
in custody. The charges that are currently before the court do not
relate to allegations during that period of time.

[7] Mr. Ugyuk appeared in the Nunavut Court of Justice on August 14,
2019. At that time he pleaded guilty to a charge of resisting arrest
arising from the allegations of June 24, 2019. The balance of the
charges were either withdrawn or a stay of proceedings entered by
the Crown. The sentencing hearing was put over to another date and
he has yet to be sentenced on that charge.
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[8] During the August 14, 2019 court appearance the Recognizance was
varied, following which the conditions were to:

• keep the peace and be of good behaviour; and

• leave the presence of his father, George, if asked by the RCMP or
by George and to stay away for 24 hours.

B. October 29, 2019

[9] On this date the RCMP received a phone call from Mr. Ugyuk’s
mother. She told police that her son had been yelling at, scaring, and
threatening her and a child who lives in the home. She said that Mr.
Ugyuk had damaged things by slamming cupboard doors and taking
food. Mr. Ugyuk was not in the home at the time his mother called the
police. Approximately 15 minutes after the initial phone call, Mr.
Ugyuk’s mother called the police again as Mr. Ugyuk had returned to
the home. He could be heard in the background swearing at his
mother and asking why she had called the police.

[10] Mr. Ugyuk was charged with mischief, breach of probation, and
breach of undertaking in relation to this incident.

[11] Following his arrest on these charges Mr. Ugyuk was released on an
Undertaking given to a peace officer to have no contact with his
parents, George or Linda, and not to go to their home. He was also
placed on a condition to not drink.

C. November 8, 2019

[12] It is alleged that Mr. Ugyuk, along with a youth, broke into the local
hotel and stole a safe. He is charged with break and enter with intent
to commit an indictable offence, theft, breach of probation and breach
of the August 14, 2019 Recognizance by failing to keep the peace
and be of good behaviour.

[13] Mr. Ugyuk was released on an Undertaking given to a peace officer

with conditions that he not communicate with the co-accused and that
he not attend at the hotel.
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D. February 12, 2020

[14] On February 12, 2020, RCMP received a call from Mr. Ugyuk’s
mother stating that he was at his parents’ house and they did not want
him there. Mr. Ugyuk was charged with breach of the October 29th,
2019 Undertaking to not go to his parents’ house and with breach of
the August 14, 2019 Recognizance for failing to keep the peace and
be of good behaviour.

[15] These charges arise in the context of allegations that Mr. Ugyuk was
going to his parents’ house daily and causing problems by being
aggressive and disrespectful. It is alleged that he had been warned by
the police three days before the February 12, 2020 charges not to go
to his parents’ house.

[16] Mr. Ugyuk was issued an Appearance Notice in relation to these

charges. It is submitted that following his arrest on February 12th, the
RCMP spent time with Mr. Ugyuk to review all of the conditions he
was bound by pursuant to both the August 14, 2019 Recognizance,
the October 29, 2019 Undertaking and the November 8, 2019
Undertaking.

E. April 5, 2020

[17] On April 5, 2020, at approximately 2:15 am, RCMP received a

complaint that Mr. Ugyuk was intoxicated, trying to kick in a door, and
looking for a fight. Mr. Ugyuk was located on the side of the road and
arrested. He did not appear intoxicated. He was charged with two
counts of breach of Undertaking for drinking and two counts of breach
of Recognizance for failing to keep the peace and be of good
behaviour. He was released on an Appearance Notice.

F. April 17, 2020

[18] It is alleged that on April 17, 2020, Mr. Ugyuk was intoxicated and in
the furnace room of an apartment complex, banging on the wall and
disturbing occupants of the building.
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[19] He was arrested, charged with breaching his October 29, 2019
Undertaking by drinking and with breach of the August 14, 2019
Recognizance for failing to keep the peace and be of good behaviour.
He was remanded for a show cause hearing. While in custody, it is
alleged he assaulted another prisoner. He has been charged with
assault as a result of that allegation.

[20] For the balance of this decision I will refer to the various
Recognizances and Undertakings collectively as Release Documents.

III. GROUNDS FOR REVIEW

[21] It is submitted that the Justice of the Peace erred in law in the
following:

• she misapplied the test for detention on the secondary grounds;

• she did not consider and apply the ladder principle; and
• alternatively, the reasons for detention are insufficient and
consequently, appellate review is not possible.

IV. THE DECISION UNDER REVIEW

[22] At the commencement of the bail hearing it was acknowledged that

Mr. Ugyuk bore the onus of satisfying the court that he ought to be
released, as he had been released on conditions which it was alleged
he breached. The Crown read in the allegations for each of the
incidents, as summarized earlier in this decision.

[23] Mr. Ugyuk’s criminal record was provided to the court. It consists of
the following convictions:

Youth convictions:
2007 Mischief 6 months probation
2008 Assault (3 convictions) 14 months probation on
Breach of undertaking each charge, concurrent
Mischief
Breach of youth court disposition
Failure to attend court
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Adult convictions:
2009 Mischief 1 day, with credit for 8
Theft under $5000 months pre-trial custody,
Breach of probation 36 months probation
2010 Assault 1 day time served
Breach of probation
2013 Break and enter (2 convictions) 90 days plus 90 days
pre-trial custody, 2 years
probation
2015 Sexual assault 3 years, 2.5 years
probation
2018 Breach of probation 30 days, 18 months
probation

[24] The Crown was opposed to Mr. Ugyuk’s release on the secondary
grounds, arguing that based on the record and the number of
outstanding charges there was a substantial likelihood Mr. Ugyuk
would commit further offences if released (Transcript, pages 23-24).

[25] The Defence submitted that while it might be reasonable to conclude

Mr. Ugyuk would likely commit further offences if released, it was also
reasonable to conclude that those offences were likely to be non-
violent breaches of court orders and that it was not necessary to
detain Mr. Ugyuk for the safety or protection of the public (Transcript,
pages 26-27).

[26] In her decision the Justice of the Peace acknowledged that most of
Mr. Ugyuk’s outstanding charges were breaches of Release
Documents or his Probation Order. She summarized the positions of
both Crown and Defence. She stated that she was satisfied that Mr.
Ugyuk should not be released from custody because his ability to
follow court orders was concerning. The decision was brief and was
focused on the likelihood of Mr. Ugyuk following bail conditions. The
Justice of the Peace did not address the risk of danger to the public
that might result if Mr. Ugyuk were released.
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V. STANDARD OF REVIEW

[27] A bail review hearing is a hybrid process; it is neither a hearing de

novo nor is it an appeal. The reviewing court owes deference to the
decision under review but must also recognize that initial bail hearings
are often made on short notice, with incomplete information, and
without the benefit of counsel. A reviewing judge should exercise his
discretion to review a bail decision where:

• there is a material and relevant change in the circumstances;

• there is an error of law in the original decision; or
• the original decision is clearly inappropriate.
(R v St-Cloud, 2015 SCC 27; R v Zora, 2020 SCC 14 at para 64)

[28] In my view, this court should undertake a review of the initial bail
decision for the following reasons:

• while it is clear that the Justice of the Peace was satisfied that
there was a likelihood Mr. Ugyuk would reoffend, it is not possible
to determine from the reasons if she considered whether such
reoffending would pose a risk to public safety, as this issue was
not discussed by her. As such, the decision is not amenable to
review as there are insufficient reasons provided (R v Sheppard,
2002 SCC 26); and
• the bail court did not have the benefit of the SCC decision in Zora,
which clarifies the correct approach to bail.

VI. ANALYSIS

A. Legislation and jurisprudence

[29] The Supreme Court of Canada in Zora provided guidance on the

approach to be taken to pre-trial release and detention. The principles
to be taken from Zora are:

• pre-trial release is focused on risk management. Punishment plays

no role in the decision of whether or not to detain an accused or in
the setting of conditions on pre-trial release;
• restraint must be exercised in the decision to detain an accused
and in the setting of conditions on those released;
• there must be a nexus between the risk to be managed and the
bail conditions imposed on an accused;
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• the conditions imposed must be proportional to the risk to be

managed;
• bail conditions must be individualized in response to the
allegations and the circumstances of the accused;
• bail conditions should be responsive to changes in circumstances;
they should be reviewed and varied to ensure they address a
particular risk, are the least onerous possible, and are such that it
is reasonable to expect the accused to be able to comply with
them; and
• bail conditions should be clear and precise so that an accused is
under no misunderstanding as to what is required of him.

[30] Section 515(10) of the Criminal Code sets out the three grounds upon
which pre-trial detention of an accused may be justified. The
secondary ground is:

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 of 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…

[31] In R v Abdel-Rahman, 2010 BCSC 189 at para 23, the court set out
the approach to assessing whether detention of an accused is
necessary on the secondary ground. The court should consider:

a) First, whether there is a risk that the accused will either commit an
offence, or will interfere with the administration of justice, if he is
released;
b) Second, whether this risk is of such magnitude that it amounts to a
“substantial likelihood”;
c) Third, whether the said risk would constitute a danger to public
safety (in general, or to a specific victim or witness) if the accused
is released; and
d) Fourth, whether the detention of the accused is “necessary,”
because the identified danger to public safety cannot be prevented
or reduced to an acceptable level by bail conditions (such as
reporting to authorities, curfew, no-contact, mobility restrictions,
sureties or cash bail).
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B. Likelihood of reoffending

[32] Mr. Ugyuk was arrested and released on 5 occasions before being
held for a show cause hearing. Undoubtedly, the decision to
repeatedly release him was based to some extent on the nature of the
allegations and charges, many of which might better be described as
nuisance behaviour rather than dangerous behaviour.

[33] The number of times Mr. Ugyuk has been arrested and released
indicates that he is likely to re-offend if released, a conclusion shared
by the Justice of the Peace.

C. Nature of the risk

[34] The analysis must go further however and must consider whether the
risk poses a danger to public safety and whether the risk can be
mitigated to an acceptable level by the imposition of appropriate
conditions upon release.

[35] In my view, there are two areas of risk in relation to Mr. Ugyuk. One is
in relation to his family. There are allegations of him having contact
with his family when he is not supposed to and when they do not want
to have contact. The parents have told the police that they are afraid
on Mr. Ugyuk. He is often disruptive and aggressive when in their
home. It appears that they are prepared to call the police when they
want him removed.

[36] The original June 24, 2019 Release Document had broader no-
contact provisions than the August 14, 2019 amended Release
Document. It is submitted that the October 29, 2019 charge of
breaching his release conditions by having contact with his mother
cannot stand, as at that time he was not on no-contact conditions in
relation to her. A no-contact condition in relation to his mother was
added following the October 29, 2019 allegations.

[37] Mr. Ugyuk was again charged on February 12, 2020, with having
contact with his parents when he should not.
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[38] I am unable to conclude that Mr. Ugyuk’s contact with his family in
breach of his conditions establishes a pattern of unwanted contact. I
am unable to make such a conclusion because once his contact with
his family was restricted in June of 2019, Mr. Ugyuk accrued two
charges of breaching the non-contact provision over a period of a
year. In my view, this cannot be said to be a pattern of behaviour.

[39] Although Mr. Ugyuk did not attest in his affidavit to any
misunderstanding regarding the conditions he was on, counsel for Mr.
Ugyuk advises that there may have been some confusion regarding
contact between Mr. Ugyuk and his family. Counsel for Mr. Ugyuk has
submitted that following his February, 2020 arrest, the RCMP took the
time to carefully review with Mr. Ugyuk all of the release conditions he
was bound by. At this point, he would have been subject to three
Release Documents, those of August 14, 2019; October 29, 2019;
and November 8, 2019.

[40] If one of the goals is to have clear, easily understood bail conditions,
a multiplicity of release documents is to be avoided. If an accused
accrues additional charges after his first release and the decision is
made to release him again with additional or varied conditions, the
best approach is to vacate the earlier release documents and put all
charges and conditions on one document. This makes the conditions
easier to understand for everyone, and especially so for the accused.
It also prevents multiple charges for breaching release conditions
arising from one incident. For example, an accused may have a no-
contact condition on one release document. If he breaches that no-
contact provision he might be charged not only with that breach but
also with failing to keep the peace and be of good behaviour in
relation to other release documents. This is contrary to the principles
set out in Zora. However, as will be discussed, vacating prior Release
Orders is not an option available to peace officers.
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[41] One of the goals of the bail system is to ensure that accused are
released at the earliest opportunity and do not remain in custody
awaiting an appearance before a Justice of the Peace when there is
no need to do so. It is for this reason that the bail provisions of the
Criminal Code were amended in 1994 to permit peace officers (for the
purposes of this discussion I make no differentiation between peace
officers and officers in charge) to release accused persons on
conditions. This ensures that the necessary conditions to protect the
public are in place and that accused persons are released as soon as
possible.

[42] Peace officers may release accused persons on conditions pursuant

to either s. 499 or 503 of the Criminal Code. If an accused is released
by a peace officer, both the accused and the crown have the right to
make an application to have the release document replaced by one
issued by a Justice of the Peace (s. 499 (3) and (4) and s. 503 (2.2)
and (2.3)). The Criminal Code does not provide a mechanism
whereby peace officers can vacate prior release documents.

[43] Accordingly, where an accused who has been charged and released
on conditions by a peace officer is again arrested and charged, the
peace officer has the following options:

• release with no additional conditions, just a document compelling

attendance at court;
• release on a separate Release Document with additional
conditions;
• bring the matter before a Justice of the Peace so the existing
Release document can be vacated and one Release Document
encompassing all charges be issued; or
• bring the matter before a Justice of the Peace for a contested bail
hearing.

[44] In my view the police exercised their discretion in a reasonable

manner when they dealt with Mr. Ugyuk. The conditions he was
released on in November were directed at minimizing risk in relation
to the specific break and enter he was accused of committing. His
subsequent releases in February and April with nothing more than a
date for a court appearance reflected the minor nature of the
allegations on those dates. Unfortunately, they simply did not have
the option of consolidating all of the conditions on the three Release
Documents into one document. The multiplicity of release documents
may have resulted in some confusion.
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[45] The other area of risk in relation to Mr. Ugyuk is his conduct in the
community. The allegations in April are offences more in the nature of
a nuisance than criminal behaviour. They do not rise to the level of
dangerousness and do not raise concerns regarding public safety.

D. Other considerations

[46] Recent amendments to the Criminal Code specifically direct the court
to give particular attention to the circumstances of Indigenous and
vulnerable accused when setting bail conditions. Section 493.2 states:

In making a decision under this Part, a peace officer, justice or judge

shall give particular attention to the circumstances of:

(a) Aboriginal accused; and

(b) accused who belong to a vulnerable population that is

overrepresented in the criminal justice system and that is
disadvantaged in obtaining release under this Part.

[47] The court in Zora recognized the reality of many accused who find
themselves in bail court, stating at paragraph 79:

A third reality of bail is that onerous conditions disproportionately

impact vulnerable and marginalized populations (CCLA Report at pp.
72-79). Those living in poverty or with addictions or mental illnesses
often struggle to meet conditions by which they cannot reasonably
abide.

Indigenous people, overrepresented in the criminal justice system, are

also disproportionately affected by unnecessary and unreasonable bail
conditions and resulting breach charges.
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[48] Mr. Ugyuk suffers from many of the disadvantages recognized by the
court in Zora. He has a grade 5 education. He is unemployed and
receives disability income, although the nature of the disability has not
been disclosed to the court. He suffers from addiction issues. There is
a suggestion that there may be mental health issues. His
estrangement from his family has left him homeless in a remote
community that has no housing options available. For the past year
he has been living in a shack which, I am advised, is more akin to a
crate and lacks basic necessities such as running water and cooking
facilities. The circumstances of Mr. Ugyuk reflect social issues that the
criminal justice system is ill equipped to respond to.

E. Mitigation of the risk

[49] I am satisfied that any risk to public safety that Mr. Ugyuk poses can
be mitigated to an acceptable level through appropriate release
conditions. Those conditions will give his parents control over contact
so as to ensure that they have a peaceful home for their family. They
will prohibit contact with witnesses in relation to the more serious of
the charges.

V. CONCLUSION

[50] Mr. Ugyuk will be released on the following conditions:

a. to attend court as directed;

b. to have no contact with his parents, George Ugyuk and
Linda Ugyuk, and not to go to their house, #41, Taloyoak,
unless the RCMP tell him he can;
c. to have no contact with Darren Nulliayuk or Tim
Napacheekadla; and
d. not to go to the Boothia Inn, Taloyoak.

Dated at the City of Iqaluit this 13th day of July, 2020

___________________
Justice S. Cooper
Nunavut Court of Justice