Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Tugak, 2018 NUCJ 37

Date: 20181221
Docket: 18-18-271-1; 18-18-105; 18-18-108; 18-18-166;
18-18-167
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Applicant: Patrick Smith

-and-

Accused: Tommy Tugak

________________________________________________________________________

Before: The Honourable Madam Justice Susan Cooper

Counsel (Crown): Sarah Bailey

Counsel (Accused): Self-represented
Counsel (Applicant): Patrick Smith

Location Heard: Iqaluit, Nunavut

Date Heard: December 21, 2018
Matters: Appointing amicus curiae

REASONS FOR DECISION

(Delivered Orally)
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I. INTRODUCTION

[1] Mr. Tommy Tugak has a number of pending criminal charges before
the Court. He is currently in custody and unrepresented, having
dismissed his lawyer and advising the Court that he wishes to
represent himself and does not want to retain different counsel.

[2] Mr. Tugak's former lawyer has brought application to have amicus
curiae appointed. Mr. Tugak opposes the appointment of amicus
curiae.

II. BACKGROUND

[3] The specifics of Mr. Tugak's charges are:

Court file #

18-18-271-1: Two counts of sexual assault, arising on the same date

but with different complainants.
A preliminary hearing was held and the matter will
proceed to a jury trial.

18-18-105: One count of uttering threats to a police officer.

One count of breach of undertaking for drinking.

18-18-108 One count of assault.

One count of breach of undertaking for failing to keep
the peace and be of good behaviour.
One count of breach of undertaking for drinking.
One count of uttering threats to police officers.

18-18-166: One count of mischief for interfering with the lawful of

enjoyment of property in relation to commercial
premises.
One count of breaching release conditions by being out
of his residence in breach of a “house arrest”
condition.
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One count of breaching release conditions by not

notifying the police that he was leaving his
residence prior to doing so.

18-18-167: One count of assault.

One count of breach of recognizance for drinking.
One count of breach of recognizance for not presenting
himself at the door of his residence for a curfew
check.

[4] All of the matters are set to be spoken to on January 7, 2019, in

assignment court. At that time, the Crown will advise the Court as to
whether the charges for sexual assault set for a jury trial, will proceed,
as the Crown is reassessing the reasonable probability of conviction
in relation to those two counts.

[5] In relation to the remaining matters, it is expected that they will be set
for trial during the next Rankin Inlet circuit, which is the week of
February 12, 2019. Arrangements were made for Mr. Tugak to
receive disclosure directly.

[6] It is noteworthy that the procedural history of these matters includes

an Order that Mr. Tugak be assessed to determine both if he is fit to
stand trial, and if he was suffering from a mental disorder at the time
of the commission of the alleged offences.

[7] The Assessment Order was made on November 9, 2018, and a

psychiatrist was in Iqaluit in December to carry out the assessment.
By that time, Mr. Tugak had discharged his lawyer and refused to
cooperate in the assessment. Accordingly, the psychiatrist did not
provide a report.

[8] On December 20, 2018, an email exchange was sent by Mr. Tugak's
sister to judges' chambers and was brought to my attention. The
week of December 17 - 21, 2018, is also the week Mr. Tugak's
matters were last in court and the application to appoint an amicus
curiae was heard.

[9] The email was sent to a number of people involved in the

administration of justice. The email expresses concerns regarding
Mr. Tugak's mental health and the fact that he is being held in
segregation and is not in a hospital being treated.
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[10] I mention this as the email is part of the overall context in which the
application for appointment of an amicus curiae was heard.

III. ANALYSIS

[11] The Court has jurisdiction to appoint amicus curiae pursuant to its
inherent jurisdiction, as a superior court, to control its own process
and ensure that the administration of justice is served.

[12] The leading authority on the appointment of amicus is the Supreme

Court of Canada decision in Ontario v Criminal Lawyers' Association
of Ontario, 2013 SCC 43, [2013] 3 SCR 3 [Ontario]. Although the
decision dealt with the narrow issue of whether a superior court has
jurisdiction to set the rate of remuneration for amicus, the Court took
the opportunity to provide guidance on how the power to appoint
amicus should be exercised.

[13] The Court stressed the distinction between the role of amicus and the
role of Defence Counsel. While the accused may benefit from the
appointment of amicus, such benefit is incidental and is not the
purpose of appointing amicus.

[14] Amicus curiae serves as “friend of the court” and has a duty to put
forward submissions or information that may or may not be favourable
to the accused and may be contrary to the wishes of the accused.
Amicus does not have a solicitor/client relationship with the accused.
Amicus cannot be discharged by the accused, as amicus does not
serve the accused.

[15] Succinctly put, “...a lawyer appointed as amicus who takes on the role
of defence counsel is no longer a friend of the court.” (Ontario at para
56)

[16] The Court was clear that the power to appoint amicus should be used
sparingly, in response to exceptional circumstances where the
appointment is necessary to assist the judge in discharging her
functions in the particular case. (Ontario at para 47).

[17] Fish J. (in dissent on other points) set out the following guidelines for
the appointment of amicus:
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- the power to appoint amicus should be used sparingly and with

restraint and in response to specific and exceptional
circumstances (Ontario at para 115);

- amicus should not be appointed to impose counsel on an

unwilling accused or to permit an accused to circumvent the
government funded legal aid plan (Ontario at para 116);

- if appointed, amicus may undertake a wide variety of roles, but

the core purpose is always to assist the court (Ontario at para
118);

[18] The application for the appointment of an amicus sets out three
reasons why an amicus should be appointed in these matters; first,
that there are complex legal issues, secondly, that Mr. Tugak has
requested a bail review, and thirdly, that there may be some issues
regarding Mr. Tugak's being kept in segregation.

[19] I will address each of these separately.

[20] While the applicant submits that there are complex legal issues for the
Court to determine, there is no information before the Court as to
what those legal issues are. With the exception of the matters set for
jury trial, all of the matters appear to be relatively straight forward
summary conviction matters. There is no suggestion from the Crown,
the applicant, or Mr. Tugak that there are Canadian Charter of Rights
and Freedoms, Part I of the Constitution Act, 1982, being Schedule B
to the Canada Act 1982 (UK), 1982, c 11 [Charter] issues or other
issues regarding the admissibility of evidence. Given the wording of
the charges it is clear that many of the witnesses will be police officers
and there is no suggestion that there are vulnerable witnesses.

[21] With respect to the two charges of sexual assault that are to go to trial
before a jury, with the exception of the fact that the trial will be before
a jury and accordingly, the trial process may be somewhat more
complex than a judge alone trial, there is nothing to indicate that there
are complex legal issues to be determined.

[22] As the Court stated in Ontario, a court must be careful not to appoint
amicus curiae to function as Defence Counsel and thereby delegate
the court’s obligation to ensure trial fairness and undermine the
constitutional right of an accused to represent himself.
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[23] I am not satisfied that it is necessary for amicus to be appointed for

the trial of the summary conviction matters.

[24] With respect to the sexual assault matters that are set for jury trial, I
am mindful that the Criminal Code, RSC 1985, c C-46, s. 486.3, upon
application, permits the court to appoint counsel for the purposes of
cross-examining complainants in sexual offences. The exercise of
this power would not only serve its core purpose of ensuring
complainants are able to provide full account of their allegations, in
the circumstances of this case it would also assist in ensuring trial
fairness.

[25] The fact that the matter is proceeding before a jury is not, in and of
itself, sufficient reason for the appointment of amicus. Doing so would
be to run afoul of the caution that the court must not, through the
appointment of amicus, impose counsel on accused who wish to
represent themselves.

[26] Finally, in my view the appointment of an amicus in relation to the jury

matter would be premature given that the Crown has yet to make a
final decision on whether it will be proceeding with the charges.

[27] The remaining two grounds put forward for the appointment of an
amicus, those being for a bail review and potentially some kind of
application in relation to Mr. Tugak's detention in segregation, are
related.

[28] While in court the week of December 17th, Mr. Tugak raised the issue
of a bail review. He was told by the Court that there are documents
that need to be filed to bring a bail review before the Court. Specific
types of information must be provided to the court on a bail review.
Mr. Tugak is in custody without access to the tools and information
needed to initiate that process. The nature of a bail review is such
that time is of the essence. Delay or denial in bringing on a bail
review because of an accused person's inability to draft and print
documents has the effect of putting form over substance and may
result in miscarriages of justice.

[29] Mr. Tugak’s legal circumstances could change quite rapidly in the
next few weeks depending on decisions made by the Crown and how
quickly his matters go to trial.
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[30] Practically speaking, it is unlikely that a bail review could proceed

before the February court dates. If for some reason the summary
conviction matters are not resolved at that time, it may be appropriate
for a bail review to proceed.

IV. CONCLUSION

[31] I am directing that amicus be appointed for a limited purpose on the

following terms and conditions:

1. Amicus will prepare and file the necessary documents for a bail
review, ensuring that the information required pursuant to Rule 32 of
the Criminal Procedure Rules of the Supreme Court of the Northwest
Territories, SI/98-78 (Nu) is provided to the court.

2. As part of the information provided to the court for a bail review,

counsel may provide information regarding Mr. Tugak’s
circumstances while in custody.

3. Amicus may make legal submissions regarding the validity of

segregation generally. In doing so, amicus is not acting as an
advocate for Mr. Tugak.

Dated at the City of Iqaluit this 21st day of December, 2018

___________________
Justice S. Cooper
Nunavut Court of Justice