Court File and Parties

COURT FILE: 20-RM19805 DATE: 2021/03/08 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN, Respondent – and – Isaah Picody-Naveau, Applicant

Counsel: Fara Rupert, for the Respondent Ewan Lyttle and Brett McGarry, for the Applicant

HEARD: January 27, 2021

BY ORDER PURSUANT TO SECTION 517 OF THE CRIMINAL CODE THE EVIDENCE TAKEN, INFORMATION GIVEN OR REPRESENTATIONS MADE AT THE HEARING AND THESE REASONS SHALL NOT BE PUBLISHED IN ANY DOCUMENT, OR BROADCAST OR TRANSMITTED IN ANY WAY BEFORE THE COMPLETION OF THE TRIAL OF THIS MATTER, OR IF DISCHARGED AFTER A PRELIMINARY INQUIRY:

REASONS FOR DECISION

MARANGER J.:

[1] Isaah Picody-Naveau stands charged with several criminal code offences, the most significant of which is one count of second-degree murder. He brings an application for bail pursuant to sections 515 and 522 of the Criminal Code of Canada.

[2] The Crown also applies pursuant to section 524(8) of the Code to cancel the accused’s prior form of release.

[3] On February 4, 2021 I delivered brief oral reasons for granting Mr. Picody-Naveau bail with the understanding that more detailed written reasons would be provided. What follows are those reasons.

OVERVIEW:

1. The applicant bears the onus pursuant to section 522(2) of the Code of showing cause that his detention in custody is not justified within the meaning of section 515(10).

2. The related chronology of charges/arrests together with prior methods of release was as follows:

   • August 20, 2018 Theft under $5000 promise to appear.
   • January 26, 2019 Theft Under $5000 promise to appear.
   • March 26, 2019 Arrested on a bench warrant released on a recognizance.
   • September 7, 2019 Arrested on a bench warrant released on a recognizance.
   • December 27, 2019 Arrested on a fail to comply with recognizance release order.
   • February 24, 2020 Arrested for assault, forcible confinement, and breaches respecting the complainant Cerina Katapatuk. A release order was granted.
   • March 14, 2020 Arrested for assault, assault with a weapon and other charges again respecting Cerena Katapatuk. Release order granted.
   • March 19, 2020 Held on a second-degree murder charge and has been in custody since that date.

The Murder Allegation/Strength of Crown case:

3. On March 19, 2020 at 2 PM the applicant is alleged to have aided Tyler Richard in the stabbing death of Gholam Alisalehie. Mr. Alisalehie was stabbed multiple times in the back with a drywall knife, the incident occurred at 230 Murray Street, in front of the Shepherds of Good Hope shelter. The victim died of the stabbing injuries in hospital on March 21, 2020.

[4] The entire stabbing incident is caught on video, the perpetrator of the crime is wearing very distinctive clothing including a bright red-orange baseball hat with a black logo, a dark camouflage style jacket and distinctive multi-coloured running shoes.

[5] Mr. Picody-Naveau is jointly charged with the murder, as an aider and abettor, he is seen in a physical altercation with the victim involving an exchange of blows seconds before the victim was stabbed. He is also seen in the company of Tyler Richard travelling on a bus and walking for a period of time prior to the attack.

[6] The court had the opportunity to review the video, it is a brazen attack that takes place in broad daylight. While the victim is being stabbed, there are several other persons within 4 feet of the incident. One of them is Jesse Morton who knows Tyler Richard and identifies him as the person who committed the stabbing.

[7] Mr. Picody-Naveau gave an exculpatory statement respecting any knowledge of the stabbing beforehand.

[8] After conducting a preliminary inquiry for both accused, Justice Céline Dorval released a written decision on November 20, 2020 committing the applicant to stand trial on the 2nd degree murder charge.

[9] Justice Dorval at the conclusion of her reasons provided some insightful commentary on the weakness of the mens rea element in the Crown’s case against the applicant. At the conclusion of her reasons she indicated the following:

“The real issue is whether the accused had the requisite intent to aid and abet. The Crown argues that by continuing to grapple with the accused after Mr. Richards was seen with a knife and started to stab the victim, there is a reasonable inference that the accused, at that point, assisted, knowing Mr. Richard had formed a murderous intent.

As I have noted above, four seconds elapsed between the moment Mr. Richards came from behind Mr. Picody-Naveau and the last stabbing motion. For the inference sought to be drawn by the Crown, Mr. Picody-Naveau has to have noticed Mr. Richards go behind a victim, stab him, realize that Mr. Richards intended to kill Mr. Alisalehie or cause bodily harm that he knew was likely to cause death, and form the intent to continue to hold on to the victim to assist Mr. Richards in his endeavor.

In my view, there is insufficient time for that mental process to take place. However, as the case law clearly sets out, it is not for the preliminary justice to draw any inference, but merely to determine whether it would be reasonable for a jury to do so. Had Mr. Richards stabbed Mr. Alisalehie only once or twice, the inference leading to mens rea would be unreasonable. However, the number of motions of stabbing, and particularly a two-handed motion to stab, render the logical reasoning towards the inference of mens rea one which is not unreasonable. I must therefore commit Mr. Picody-Naveau to stand trial on second-degree murder.”

[10] I have reviewed the video of the attack on Mr. Alisalehie several times. I agree with the comments of Justice Dorval. As strong as the case is against Tyler Richards it is at the other end of the spectrum against this accused. The trial for murder is set to be heard in 2022.

[11] Mr. Picody-Naveau also awaits trial on several other charges the most significant of which concern two separate incidents of domestic violence against a partner/girlfriend Ms. Cerina Katapatuk. The two incidents can be summarized as follows:

• On February 24, 2020 the accused and the victim got into an argument at which time the accused allegedly punched the victim several times, with a closed fist on at least two separate occasions and kicked her on the side of her rib cage; in the altercation the victim also kicked at the accused and threw a small exacto knife which hit his back causing a small cut requiring one stitch.
• On March 14, 2020 the applicant is alleged to have assaulted the same victim including an assault with a weapon and one count of forcible confinement. The previous release order stipulated that he was not to communicate directly or indirectly with the complainant.

[12] These are serious allegations, the accused’s trial on the charges relating to violence against Ms. Katapatuk are expected to continue in February 2021.

[13] The accused has been in custody on these matters since March 19, 2020.

[14] The Crown also played 4 videos of altercations involving the applicant at the Ottawa Carleton Detention Centre. He seems to be the instigator. He has a violent temper. He has not done well at the OCDC.

[15] The evidence presented by the Crown demonstrates that releasing this applicant certainly poses a risk.

The Gladue report/proposed plan of release:

[16] A Gladue report was prepared on May 19, 2020 by Catherine Gull of Nishnawbe-Aski legal services. It is a detailed report that highlights the many struggles the applicant has faced culturally and emotionally over the course of his 23 years of life.

[17] He has suffered from what the author termed “intergenerational trauma”.

[18] His difficulties with the criminal justice system and reckless behavior are in some measure attributable to:

1. Chronic alcohol and addiction issues.
2. A difficult and tragic upbringing.
3. Being transplanted from a small town in northern Ontario to the city of Ottawa.

[19] The report also canvases the strong support system that his family can and is willing to provide for him.

[20] The proposed plan of release differs from previous judicial release orders to the extent that it relies heavily upon this family support system.

[21] The proposed plan of release was as follows:

• The applicant’s sister-in-law Gabrielle Anwhatin the wife of his brother Sage and his father Brad Picody would act as his two sureties.
• He would reside with Gabrielle Anwhatin, his brother Sage and their family at 939 Eiffel Avenue unit 23 in Ottawa. She is a stay at home mother who would be capable of supervising him on a regular basis.
• Brad Picody would assist but play a lesser role.
• He would be subject to GPS monitoring and he would wear an ankle bracelet monitoring device.
• He would seek out and obtain indigenous counselling through the Wapato Centre for aboriginal health and in particular seek the assistance of the addiction’s counsellor Mr. Franklin Heaney.
• He would be under a form of house arrest at that residence and be incapable of leaving the residence except in the presence of a surety.
• He would make himself available to the officer in charge or their designate by attending the door promptly for bail compliance checks.

[22] The proposed plan is the strongest plan of released ever put forward by this applicant in any criminal proceeding.

[23] Gabrielle Anwhatin is only 25 years old. However, she came across as an intelligent, mature, honest individual, who was very serious about fulfilling her role and responsibility as a surety. I believe she will do everything in her power to see that the applicant would abide by the release conditions imposed by the court.

[24] Mr. Brad Picody was equally sincere however his poor health (dialysis treatment several times a week) make it difficult for him to take a significant role in supervising the applicant.

[25] The use of an electronic bracelet has known limitations. It at its highest is useful for the purposes of possibly alerting someone that the applicant has left his residence. The jurisprudence recognizes that an ankle bracelet is not an adequate replacement for a competent reliable surety, it does not guarantee preventative supervision. With that said it strengthens this plan in that it buttresses two competent sureties.

Analysis and conclusion:

[26] The Crown relied upon the primary, secondary, and tertiary grounds in submitting that the court should deny the application.

Primary Ground:

[27] In my view the risk of Mr. Picody-Naveau not attending court is sufficiently abated by the following:

• The fact that he will be under the supervision of his family, and that he will have to wear a radiofrequency monitoring ankle bracelet.
• He and his sureties will each be posting Bonds of $1000.
• The fact that we are living in Covid times where travel is substantially restricted.

[28] The applicant has satisfied me that detention on the primary ground was not justified on the facts of this case.

Secondary Ground/tertiary ground:

[29] In my estimation the strongest ground upon which the court could have detained the applicant was the secondary ground. He has chronically disobeyed previous release orders, he has been shown to have a violent temper, and is certainly a risk to reoffend.

[30] With respect to the tertiary ground, an argument could be made on the evidence and facts in this case that detention was necessary to maintain confidence in the administration of justice having regard to all the circumstances particularly with respect to the offences apart from the murder charge.

[31] This was a case where the result could have easily gone either way. It was a close call.

[32] I granted the applicant’s request for bail based upon the following analysis: While the applicant’s track record for obeying release orders was abysmal, and he has been shown to be a risk to reoffend; the following tipped the scales in favour of release.

• The applicant has been in custody awaiting trial on all these charges as of February 4, 2021 for more than 315 days.

• The Gladue report was compelling and played a role in my overall determination.

• The proposed plan of release is the strongest plan ever put forward by the applicant.

• The 2nd degree murder charge is a weak case. The presumption of innocence looms large.

• As the Supreme Court of Canada indicated in R. v. Antic, 2017 SCC 27, para 1:

  “The right not to be denied reasonable bail without just cause is an essential element of an enlightened criminal justice system. It entrenches the effect of the presumption of innocence at the pretrial stage of the criminal trial process and safeguards the liberty of accused persons”

[33] Therefore, the application for bail was granted, and the specifications of the bail order were those contained in the order of release signed by me on February 4, 2021.

Justice Robert L. Maranger March 8, 2021