You are on page 1of 8

Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut
Citation:
Date:
Docket:

R. v. Lucassie, 2015 NUCJ 32

Registry:

20151103
08-14-64; 08-14-161; 08-14-132; 08-14-163; 08-14304; 08-15-44; 08-15-424
Iqaluit

Crown:

Her Majesty the Queen


-and-

Accused:

Iola Lucassie

________________________________________________________________________
Before:

The Honourable Mr. Justice Johnson

Counsel (Crown):
Counsel (Accused):

J. Montgomery; M. Girard
J. Park

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
September 8-11, 2015; September 14-16, 2015
Criminal Code,s.127(1); s. 264.1(1)(a); s. 266; s. 267(b); s.
270(1)(a); s. 270.01; s. 270.01(b)

REASONS FOR JUDGMENT

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

I. INTRODUCTION
[1]

The accused was charged with 13 offences that were alleged to have
occurred at the Baffin Correctional Centre [BCC] on December 5,
2013 (08-13-64), two offences that were alleged to have occurred on
March 5, 2014 (08-14-162), one offence that was alleged to have
occurred on March 16, 2014 (08-14-163), two offences that were
alleged to have occurred on March 30, 2014 (08-14-161), two
offences that were alleged to have occurred on May 12, 2014 (08-14304), two offences that were alleged to occurred on January 20, 2015
(08-15-44) at an RCMP remand cell, and two offences that were
alleged to have occurred on February 28, 2015 (08-15-424) on a
plane transporting the accused to British Columbia.

[2]

The accused entered guilty pleas to a number of charges prior to the


commencement of the trial on the not guilty pleas. The Court also
conducted a Gardiner hearing on the facts supporting the guilty
pleas and reserved judgment on the not guilty pleas to a sentencing
that is set for November 13, 2015.

II. EVIDENCE AND ANALYSIS


A. December 5, 2013, charges
(i). Facts
[3]

The evidence summarized in paragraphs 6 to 36 of the Crowns


written closing argument is an accurate statement of the evidence of
acting supervisor Thomas Bracken [Bracken], Dormitory Officers
Wade Cooper [Cooper] and Samuel Mireault [Mireault], Control
Officer Robert Pumpfrey [Pumpfrey], and Correctional Officer
Matthew Jervis [Jervis]. These facts were not disputed by the
accused.

[4]

Between 6:00 and 6:30 pm on December 5th, 2013, Mireault found


the accused in dormitory one of BCC sweating and observed him
using a metal object to remove a metal window. From his experience
he believed that the accused wanted to remove the window to allow
contraband into BCC. He relayed the information to Bracken.

[5]

At approximately 6:50 pm, Bracken, Cooper, and Pumpfrey began


investigating a banging noise that they heard was coming from
dormitory one. Bracken reviewed video surveillance from dormitory
one to determine the source of the noise. Bracken concluded that the
accused was involved in attempting to bring contraband into BCC.
Bracken notified the Warden and he was instructed to remove the
accused from the dormitory so he could be questioned about the
suspected contraband incident.

[6]

The accused was inside Dormitory Three with two other inmates and
heard Pumpfrey on the public announcement system tell him to come
to the secure hallway outside of Dormitory Three. The accused did
not comply with the request. Cook went into Dormitory Three and
asked the accused to come to the secure hallway, but he again
refused. Cook then advised Bracken that the accused refused to
attend the secure hallway. Bracken and Cooper then went to
Dormitory Three to speak with the accused. Jewis followed Cook,
Bracken and, Cooper into Dormitory Three.

[7]

Inside Dormitory Three, Bracken told the accused that he needed to


come to the secure hallway so he could be questioned about a
suspected contraband incident. The accused became agitated and
refused the request. He moved to the back of the dormitory, removed
his socks and shirt, and took up a fighting pose. The accused threw a
game board at the officers, but did not hit anyone. Bracken told the
other inmates to leave and they complied. Bracken, Cooper, and
Cook responded with a defensive stance and advanced toward the
accused.

[8]

The accused punched Bracken between his left ear and jaw causing
his shoulder to come out of joint. Cooper tried to restrain the accused
as Bracken retreated and the accused punched him on the left side of
his face pushing him to the side. Bracken moved to the back of the
dormitory to attempt to reposition his shoulder. Jewis moved up to
take his place and the accused punched him on the left side of his
face. Jewis lost his balance and fell to the floor.

[9]

Cooper put his foot above Jewis in an attempt to protect him from the
accused. The accused picked up a chair and Cooper, Bracken, and
Cook retreated to avoid being struck while Jewis remained on the
floor.

[10] The Crowns interpretation of the evidence in paragraph 37 is


disputed by the accused. Both parties reviewed the videotape of what
occurred and came to different conclusions. Both agree that the tape
clearly shows the accused swing the chair twice in the direction of
Jewis and then throw it toward the other officers. All the officers then
left the dormitory and closed the door while the accused went into a
lengthy tirade where he kicked walls and lashed out until he ran out of
energy.
[11] The Crown argues that Jewiss head injury was caused by the first
swing of the chair. The accused argues that the injury could have
been caused by an officers boot coming into contact with his head in
the melee. He submits that the videotape does not clearly show what
happened or how Jewis suffered the head injury. The videotape
shows the chair being swung several times and the accused testified
that he was aiming at his chest. The videotape shows Jewis put his
arm up to block the first swing and the second swing appeared to hit
Cooper in the leg. Then there was a third swing when the accused hit
Jewiss leg.
[12] The accused argues that none of the witnesses who testified had a
clear view of the chair hitting Jewiss head and it is certainly not clear
from viewing the videotape. Under all the circumstances it is possible
that one of the officers boots accidently hit Jewiss head and caused
the injury. The Court should have a reasonable doubt and acquit the
accused of the charge of aggravated assault set out in count 1.
[13] The accused also argues that the officers did not follow the BCC
standing orders when the officers failed to tell him that he would be
placed in administrative segregation if he did not obey the demand
that he report to the secure hallway. He asked why he was required to
report and was not given an answer.
[14] The accused entered a guilty plea to count 6 and admits that he made
a threat to cause bodily harm to Bracken if he opened the door, but
denies threatening to cause death to Brackens children or burn his
house down. He also denies threatening death to Mireault or Cooper
and denies threatening to burn Mireaults house down.
[15] Count 2 was amended from assault with a weapon to assault causing
bodily harm and the Crown stayed count 12. The accused entered
guilty pleas to counts 2, 3, 4, 5, 6, and 13. Count 12 was stayed.

(ii). Analysis
[16] Standing Order 1110(4)(a)1 provides that the Warden shall as soon
as is practical and no later than the end of the next business day, give
an offender placed into administrative segregation written notice of
the reason for the placement.
[17] The Warden of BCC had reasonable grounds to believe that the
accused was involved in attempting to bring contraband into BCC and
to request that the accused be taken to the secure area for
questioning. When the request was made to the accused to attend the
secure hallway he was obligated to comply and the Warden was not
required to give written notice until the next business day. As a result
the lack of written notice has no relevance to the analysis of whether
the accused is guilty or not guilty of the charge of aggravated assault.
[18] The videotape clearly shows the accused swing a chair twice at Jewis
laying on the floor, but does not show it hitting his head. Jewis and
Cooper put their arms and legs up in a defensive posture to protect
Jewis from being hit when he was in a vulnerable position on the floor.
The question that I must determine is whether it is a reasonable
inference that it was the chair that caused the head injury. The third
and fourth pictures in Exhibit 9 show the head injury that was
described in the medical report that was marked as exhibit 10 as a
laceration that required sutures. The accused argued that the
laceration might have been caused by one of the officers boots
accidently striking the head.
[19] I am satisfied that a boot could not have caused the laceration type of
injury that Jewis received. A boot would perhaps cause a bump or a
scrape, but would not have a sharp enough edge to cut the skin. I am
satisfied beyond a reasonable doubt that the chair the accused swung
at Jewis caused the laceration.
[20] Section 270.02 of the Criminal Code of Canada, RSC 1985, c C-46
[Criminal Code], states:
270.02 Everyone who, in committing an assault referred to in section
270, wounds, maims, disfigures or endangers the life of the
complainant is guilty of an indictable offence and liable to
imprisonment for a term of not more than 14 years.
1

Government of Nunavut, Department of Justice, Corrections Division, Baffin Correctional Centre


1110 Administrative Segregation (June 2015).

[21] Section 270 of the Criminal Code states:


270. (1) Every one commits an offence who
(a) assaults a public officer or peace officer engaged in the execution
of his duty or a person acting in aid of such an officer;
(b) assaults a person with intent to resist or prevent the lawful arrest or
detention of himself or another person; or
(c) assaults a person
(i) who is engaged in the lawful execution of a process against
lands or goods or in making a lawful distress or seizure, or
(ii) with intent to rescue anything taken under lawful process,
distress or seizure.

[22] I am satisfied that Jewis was a peace officer who was lawfully
engaged in his duty of detaining the accused so he could be taken to
the secure hallway for questioning. The only issue is whether the
laceration constitutes a wound. The issue was recently analyzed at
paragraphs 118-124 in R v Beharri, 2013 ONSC 7753, [2013] OJ No
6476 (QL), where Hill J. concluded that wounding occurs when the
skin is broken. That clearly happened in this case and as a result I
convict the accused of aggravated assault.
[23] The accused was highly agitated and in a rage when the officers
managed to close the door to the dorm. His memory was distorted by
the rage that went on for a considerable time. I prefer the evidence of
the officers about the nature of the threats and accept their evidence
and reject the accuseds evidence. I therefore convict him of making
the threats described in counts 7, 8, 9, 10, and 11.
B. March 5, 2014, charges
[24] The accused entered guilty pleas to assaulting Hari Barka and making
a death threat.
C. March 16, 2014, charges
[25] The accused was charged with assaulting Manuel Olondriz by spitting
on him while he was engaged in his duties as a peace officer.

[26] Olondriz testified that the accused was standing about 8-10 feet away
from him and was cursing and yelling through the hatch in the door
where food is served. He was absolutely clear that the accused spit
through the hatch and hit him on his uniform and pants. He was
surprised that the accused could spit that far and commented on it.
The accused testified that he was upset and yelling at Olondriz and
that during the yelling saliva may have exited his mouth by accident
and hit him.
[27] I accept the evidence of Olondriz and reject the evidence of the
accused. He was a credible witness and was clearly shaken by what
happened because spitting is a grave insult in his Filipino culture. He
would not have mistaken accidental spraying of saliva through speech
with someone spitting at him.
[28] I convict the accused of assaulting Olondriz.
D. March 30, 2014, charges
[29] The accused entered guilty pleas to assaulting Mireault and
committing mischief by damaging a telephone.
E. May 12, 2014, charges
[30] The accused entered guilty pleas to assaulting Mireault and making
death threat.
F. January 20, 2015, charges
[31] The accused entered a guilty plea to assaulting Peter Angutimarik in
an RCMP remand holding cell and the Crown conditionally stayed the
second count.

G. February 28, 2015, charges


[32] The accused entered guilty pleas to assaulting RCMP officer Sgt.
Grant Smith and BCC officer David Bertrand.

Dated at the City of Iqaluit this 3th day of November, 2015

___________________
Justice E. Johnson
Nunavut Court of Justice

You might also like