R. v. Nakashuk, 2011 NUCJ 16 deals with judicial interim release in the face of a murder charge. In such cases the critical ground will usually be the tertiary ground – however, bail is not automatically denied to those charged with murder:
C. The tertiary ground (Criminal Code, ss 515(10)(c))
20 A person may be detained in custody pending trial if it is determined that "detention is necessary to maintain confidence in the administration of justice" (ibid.). The Court must consider:
all of the circumstances, including
(i) the apparent strength of the prosecution
(ii) the gravity of the offence,
(iii) the circumstances surrounding the commission of the offence, including whether a firearm was used, and
(iv) the fact that the accused is liable, on conviction, for a potentially lengthy term of imprisonment [...]
21 The Court must consider all of the circumstances in determining whether detention is necessary to maintain public confidence in the administration of justice. As the Supreme Court of Canada stated in R v Hall, 2002 SCC 64 at para 41, [2002] 3 SCR 309 …:
The judge must be satisfied that detention is not only advisable but necessary. The judge must, moreover, be satisfied that detention is necessary not just to any goal, but to maintain confidence in the administration of justice. Most importantly, the judge makes this appraisal objectively through the lens of the four factors Parliament has specified.
22 The Court further stated, that a judge can only deny bail if satisfied that, in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice. The reasonable person making this assessment must be one properly informed about the philosophy of the bail provisions of the Criminal Code, Charter values and the actual circumstances of the case. The circumstances in which this ground will be the sole basis for denying bail will arise infrequently (ibid.).
i. Strength of the Crown
23 Any analysis at this stage must, of necessity, be superficial. It does appear that the Crown has fairly strong evidence to establish that Ms. Nakashuk was the person who stabbed the deceased. The strongest evidence of this is her utterances to various acquaintances and friends. The admissibility or reliability of the statements cannot be determined at this stage. The DNA evidence, while placing Ms. Nakashuk at the scene, does not tie her inextricably to the offence, as she did not have exclusive opportunity. Indeed, when the RCMP arrived at the scene there was another highly intoxicated person there.
24 Ms. Nakashuk is charged with second degree murder. At trial the onus will be on the Crown to prove beyond a reasonable doubt all of the elements of second degree murder, including intent. If issues of self-defence or provocation arise on the evidence, the onus will be on the Crown to disprove them.
25 On the materials before me, there appear two issues that the Crown may have to overcome to establish intent. One is the fact that the deceased was still alive when the police arrived. He was moving his head and gasping for air. This does not appear to be a case where the person who stabbed the deceased would likely have thought he was dead when they left the residence. The second issue is the intoxication of Ms. Nakashuk. All of the materials presented, including the observations of the police officer who arrested her that night, indicate that she was intoxicated. It may be that her level of intoxication is such that she could not form the necessary intent for murder. That is an issue for the trial. If the Crown is unable to prove intent beyond a reasonable doubt then manslaughter is a more likely verdict.
26 The Defence has indicated that when Ms. Nakashuk was being interviewed by the RCMP, it was suggested to her that the deceased was attempting to sexually assault her and perhaps she stabbed him to repel an attack. The Defence concedes that this may simply have been an interrogation tactic to persuade Ms. Nakashuk to give a statement. However, the Defence points to the fact that the deceased was found with his pants and underwear partially down and to the utterance made by Ms. Nakashuk to the effect that "he tried to do it to me" and "I tried to cut his [penis] off."
[27] It is understandable why the Defence would not, at this early stage, want to disclose its case. While that is a strategic decision to be made by the Defence, the Court can base its decisions only on the evidence before it. The stage of undress of the deceased, who was apparently found in the living area of the apartment, is perplexing. If, at trial, there is an "air of reality" to the defence of self-defence, the onus would be on the Crown to disprove self-defence. A successful defence of self-defence could result in an acquittal. Alternatively, the same evidence might form the basis for a partial defence of provocation. Again, these are issues for the trial.
28 While the Crown has relatively strong evidence to establish that Ms. Nakashuk was the person who stabbed the deceased, there are very live issues on whether this is murder or manslaughter. It is less clear whether there might be a complete defence to the charge.
ii. Gravity of the offence
29 Murder is the most serious offence in the Criminal Code. In that sense, this is a very grave offence.
iii. Circumstances surrounding the commission of the offence
30 The offence did not involve extreme viciousness, torture, or a prolonged attack. There is nothing to suggest that there are elements of stalking or a pattern of violence by the accused towards the deceased. The accused was not in a position of trust to the deceased. The offence was not committed to further the commission of another offence. There is nothing in the post-offence conduct of the accused that is particularly offensive or callous.
iv. Potential length of imprisonment if convicted
31 If Ms. Nakashuk is convicted of second degree, murder the penalty is life imprisonment (Criminal Code, s 235(1)). If she is convicted of the lesser charge of manslaughter, the maximum penalty is life imprisonment and there is no minimum penalty (ibid., s 236(b)).
32 In considering the tertiary ground for detention, the Court must be mindful of the constitutional presumption of innocence and the right to reasonable bail. I must consider not only the four factors set out in section 515(10)(c) of the Criminal Code, but all of the circumstances of the alleged offence and the accused.
33 As stated by Justice Vertes in R v Caisse, 2004 NWTSC 27 at paras 6-8, [2004] NWTJ No 30:
But it is not simply a question of finding that the Crown has a strong case, that the offence charged is extremely grave, and that a potentially lengthy term of imprisonment is likely. More is required. The Criminal Code poses as the ultimate question whether, in a case such as this, in all of the circumstances, detention is necessary to maintain confidence in the administration of justice.
One cannot focus on the gravity of the offence and the strength of the Crown
If one reads the Supreme Court of Canada decision in R. v. Hall, (2002) 167 C.C.C. (3d) 449, it seems clear that the tertiary ground is meant to apply to extraordinary cases where all reasonable individuals, armed with the facts, would agree that the accused must not be released notwithstanding that attendance at trial and public safety are not concerns.
34 The reasonable person understands and values the presumption of innocence. The reasonable person understands that the right to reasonable bail is necessary if the presumption of innocence is to have meaning.
35 I am satisfied that there is nothing in the circumstances of this offence or this particular accused that necessitates her detention in custody in order to maintain confidence in the administration of justice.
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