Court File and Parties

COURT FILE NO.: 20-SA4555 DATE: 2020/12/09 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Her Majesty the Queen v. Kevin Tikivik

BEFORE: Justice A. Doyle

COUNSEL: Moiz Karimjee, for the Crown Douglas Baum, for the Applicant

HEARD: December 3, 2020 via Zoom

Reason for judgment on bail review application

Overview

[1] The Applicant, Kevin Tikivik, has brought an application under s. 520 of the Criminal Code, R.S.C., 1985, c. C-46 (“Criminal Code”), seeking a review of the detention order made by Justice J. Brunet on October 30, 2020.

[2] The Applicant is charged with four counts, all allegedly to have occurred on March 15, 2020 in the City of Ottawa: sexual assault (s. 271), sexual interference (s. 151), and two counts of failure to comply with conditions in the judicial interim release (i.e. keep the peace and be of good behaviour and reside at the address stipulated in the Release Order) (s. 145(5)(a)).

Background

[3] The Crown alleges that on March 15, 2020, while the Applicant was in Ottawa, he stayed at a family friends’ residence. The Applicant and a seven-year old girl who was resident in the house slept on separate couches in the living room. Sometime in the morning, the girl got up to go to the washroom and she alleges that the Applicant pulled her to the couch, sat her on his lap and put his hands inside her pajamas and rubbed her vagina. He then released her and she left the room.

[4] The girl told the mother three days later and this was reported to the police. On March 19, 2020, the mother and child spoke to a Detective and the mother stated that the Applicant was “couch surfing” in Ottawa.

[5] The Applicant had previously been released on a recognizance in Montreal on December 18, 2019. The conditions included a provision restraining contact with the complainant, residing at a certain address, advising of any changes to that address and to keep the peace and be of good behaviour.

[6] An investigative action report was filed on May 21, 2020, regarding the March 2020 incident. Since the Applicant could not be located, broadcasts were sent out twice for assistance by patrol. The number provided by a friend was disconnected. A first instance warrant was sought.

[7] The Applicant was arrested on October 27, 2020, on a first instance warrant for the March 15, 2020 allegation when he attended the Montreal courthouse for a preliminary hearing on outstanding charges. The preliminary hearing was adjourned to December 4, 2020.

[8] There are also outstanding charges in Quebec City including assault, mischief and failure to comply with a condition of release regarding his residence.

Show Cause Hearing

[9] The Applicant was transported to Ottawa and his show cause hearing took place on October 30, 2020, at which time Justice J. Brunet detained him.

[10] At the hearing, the Applicant proposed Kristine Franks as a surety. In her testimony, she confirmed that she had been a resident on rue Charlevoix in Montreal for the past 12 years and the Applicant had been residing with her since December 2019.

[11] Ms. Franks had been away in March 2020 doing field work in Australia. She understood he was in Ottawa as his grandmother from Nunavut was in town for surgery and staying at a friend’s house.

[12] Ms. Franks admitted that she and the Applicant were both away from their Charlevoix residence at various points, alone or together. She travels for work and for her fieldwork.

[13] The charges in Montreal stem from an alleged assault of a domestic nature on a former girlfriend. Another former girlfriend appears on his conditions for release in the charges involved in the Quebec City case.

[14] She was aware of his convictions including a standoff charge with RCMP in Iqaluit and dangerous driving in Gatineau and an assault in Ottawa.

[15] The Applicant has no offences of failing to appear in Court or breaching a probation order. He has a conviction for escaping lawful custody in Iqaluit, Nunavut that arose in the context of other offences and he was a parole violator in 2010.

[16] On October 30, 2020, he was denied bail on the primary and secondary grounds.

The Applicant’s Proposed Release Plan

[17] The Applicant is 38 years old.

[18] At the show cause hearing, the Applicant had filed an affidavit confirming that:

• He is an Inuit person and his last employment was with the Algonquins of Barriere Lake, Quebec completing home renovations; and
• He has been residing at 652 rue Charlevoix in Montreal since December 2019.

[19] He had presented one surety to the Court, his close friend Kristine Franks. Her filed affidavit confirms the following:

• She is a graduate student at Concordia University and a Doctoral Candidate;
• She is aware of the Applicant’s criminal record of 2004 and 2008 in Nunavut and 2015 in Gatineau, Quebec and the allegations before the Court;
• She resides at 652 rue Charlevoix in Montreal;
• She has been made aware of her duties as a surety by the Applicant’s lawyer and agrees to oversee the conditions set by the Court and has no hesitation to contact the police if she suspects a breach; and
• She is willing to post a bond of $2,000.

[20] His criminal record consists of the following:

• January 28, 2004: Iqaluit o Failure or refusal to provide a sample: $600 fine and suspension of licence for 1 year;
• May 15, 2008: Iqaluit o Discharge of firearm – 48 months: o Escape lawful custody: 2 months o Assault of a peace officer – 2 months o Pointing a firearm- 4 months consecutive;
• February 23, 2010: Statutory release;
• October 3, 2010: Statutory release violation; recommitted
• February 25, 2013: Ottawa o Assault- suspended sentence and 18-months’ probation; and
• December 1, 2015: Gatineau o Resisting arrest, o dangerous driving o trying to escape-9 days incarceration and 2 years’ probation, and 43 days for each last 2 charges with 2 years of probation.

Legal Principles

[21] In accordance with s. 11(e) of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (the “Charter”) everyone has the Constitutional right not to be denied reasonable bail without just cause.

[22] This is not a hearing de novo. In accordance with R. v. St. Cloud, 2015 SCC 27, [2015] 2 S.C.R. 328, the Court has the power to review a judge’s decision only:

• Where there is admissible new evidence (material change of circumstances);
• Where the impugned decision contains an error in law; and
• Where the decision is clearly inappropriate.

[23] Section 515(10) of the Criminal Code sets out the following grounds when determining if detention is justified:

(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…

[24] This is a reverse onus case. The Applicant must show cause as to why the detention order in accordance with s. 515(6)(b.1) is inappropriate. He has the onus of proof on a balance of probabilities that the detention order should be vacated.

[25] As this is a reverse onus, the Court notes that the ladder principle does not apply. I rely on Justice Bale’s decision in R. v. Sakhiyar, 2018 ONSC 5767, where he quotes from Justice Trotter:

The ladder principle is inapplicable to a situation in which a reverse onus in s. 515(6) is triggered. When this sub-section was enacted in 1976 Parliament made no attempt to reconcile the reverse onus provisions with s. 515(3). It follows that when the onus is on the accused, he or she ought to be required to justify why the most onerous form of release should not be imposed. This may well be the reality in practise.

Applicant’s Position

[26] The Applicant submits that the show cause court mischaracterized the evidence of the surety. The Court speculated that the surety could also be a victim of domestic violence and could not be trusted to make an independent decision. This was an error in law.

[27] The show cause decision is unreasonable.

[28] The Applicant denies that he provided false information contained in the Investigative Action Report. That information was given to the police from the complainant’s mother and an unnamed friend. The Applicant was not aware of the current charges.

[29] He had not changed his address. Persons on bail are permitted to be away from their personal residence for period of time for personal reasons.

[30] The Applicant could have been easily located at his home prior to the Court appearance in Montreal. His address was noted on CPIC.

[31] Finally, he submits that the Gladue principles were not applied.

Crown’s Position

[32] The Crown submits that the detention order should not be set aside as the Applicant has failed to meet its reverse onus and has failed to satisfy the Court that Justice J. Brunet erred in law or that his decision was unreasonable.

[33] The ladder principle set out in Antic does not apply in reverse onus cases.

Analysis

[34] For the reasons that follow, I am not persuaded that Justice J. Brunet made an error in law or his decision is clearly inappropriate.

[35] Firstly, with respect to the primary ground, pursuant to s. 515(10)(a) of the Criminal Code, the Court must determine whether Mr. Tikivik’s detention is necessary to ensure his attendance in court.

[36] Justice Brunet noted that:

• His release conditions of December 2018 provided that he:
  • Keep the peace and be of good behaviour;
  • Non-contact with complainant; and
  • Advise of change of address.
• Given his charge of failure to remain at his Charlevoix residence, he was concerned regarding the primary ground that he attend court;
• He quite properly found that on the evidence before him he could be a flight risk as the outstanding Quebec charge includes a failure to comply with a condition regarding his residence;
• He was “couch surfing” in Ottawa;
• He was left with the impression that the Charlevoix address was one of convenience where he could “hang up his hat”;
• Therefore, Justice J. Brunet was correct in law that detention was necessary to ensure Mr. Tikivik’s attendance in Court and his decision on the primary ground was not clearly inappropriate;
• Although I agree with the Applicant that the police could have attempted to contact the Applicant at his home on Charlevoix which was the last known address and shown on his last release conditions, he is, nevertheless facing two breaches of failure to comply with conditions regarding residence.

[37] I also note that there is little evidence of ties to the Ottawa community and in fact, the evidence before Justice Brunet was that he has spent time in Montreal, Quebec City and Ottawa.

[38] With respect to the secondary ground:

• By virtue of s. 515(10)(b) the Court must determine if detention is necessary for the protection or safety of the public, including witnesses or victims having regard to all the circumstances and whether the Applicant will commit a criminal offence or interfere with the administration of justice.

[39] Firstly, there was evidence that required the detention of the Applicant for public safety:

• He has two serious outstanding matters in Montreal and Quebec which involve domestic violence, property damage and the Quebec case involving the excessive consumption of alcohol;
• There was domestic violence in an allegation in the Montreal case and one of the complainants in the Quebec City case had been previously involved with the Applicant;
• His criminal record contains crimes with violence and he has a past history of not complying with orders, he had escaped from lawful custody in 2008 and had a statutory release violation;
• The charges before the Court stem from an allegation on a vulnerable individual of our community, a seven year old child;
• Justice Brunet considered that the charge before the court that involved a seven year old child, his outstanding charges in Montreal and Quebec and the concern that he was not residing where he was supposed to be residing at the time;
• One of the charges in Quebec was failure to comply with a condition regarding his residence; and
• He referred to the Antic ladder principles and referred to Gladue and the fact that the Applicant had the reverse onus.

[40] With respect to the surety:

• Although the surety was appropriate and articulate, the show cause Court was concerned with her hesitancy to acknowledge whether she and the Applicant were currently involved romantically and was confused by her use of the description of being a “close friend”;
• There was no evidence of domestic violence between the Applicant and the proposed surety. Justice Brunet noted that the Applicant had a 2013 conviction for a domestic assault and one outstanding charge of domestic violence in Montreal and one possibly also in Quebec City. He then articulated concerns with respect to the safety of the surety;
• Despite Justice Brunet’s above noted comments regarding possible domestic violence, he did not err in finding her to not be a satisfactory surety that could properly supervise the Applicant. He was troubled by her lack of candour with respect to the relationship with the Applicant. He found her evasive. He was entitled on the record before him to question the appropriateness of the proposed surety; and
• Despite this mischaracterization of her evidence, I do not find that this reaches the level of an overriding and palpable error.

[41] At the show cause hearing, the Court acknowledged the Gladue principles but did not give any weight to it.

[42] Section 493.2 of the Criminal Code provides:

493.2 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.

[43] The Applicant did not provide any insight as to how the Gladue principles apply in the matter before me.

[44] The Crown referred me to R. v. Stewart, 2020 O.J. 4796, where the Court acknowledged the Gladue principles and that the accused in that case had faced systemic disadvantages as an Indigenous person, and that this may impact her ability to put together a more comprehensive bail plan. Ms. Stewart was a First Nations Algonquin spoke at her bail hearing regarding intergenerational trauma and how it has affected her throughout her life.

[45] In this case, I heard from the Applicant of his deep belief in his cultural background and the difference in outlook of his people and the language of others. He spoke of colonization and assimilation and the importance of his culture and beliefs in his life.

[46] The Court respects and acknowledges Mr. Tikivik’s beliefs and adherence to his cultural views. I heard from Ms. Franks that one manner of dealing with his challenges is spending time “on the land” as his ancestors have done and many continue to do to this day.

[47] However, in this case, I am not persuaded that Justice Brunet, erred in law in not articulating the application of the Gladue principles in this case. The defence has not specified any specific error either in that regard.

Conclusion

[48] In conclusion, I do not find that his decision was inappropriate, there was no error in law and I find no overriding and palpable error.

[49] Accordingly, the application is dismissed. Mr. Tikivik, you will be detained.

Justice Adriana Doyle

Date: December 9, 2020

COURT FILE NO.: 20-SA4555

DATE: 2020/12/09

ONTARIO

SUPERIOR COURT OF JUSTICE

RE: Her Majesty the Queen v. Kevin Tikivik

BEFORE: Justice A. Doyle

COUNSEL: Moiz Karimjee, for the Crown

Douglas Baum, for the Applicant

HEARD: December 3, 2020 via Zoom

Reasons for judgement on bail review appliaction

Doyle J.

Released: December 9, 2020