R. v. I.J., 2020 NUCJ 35

ᒪᒃᑯᑦᑐᑦ ᐃᖅᑲᖅᑐᖅᑕᐅᕕᖓ ᓄᓇᕘᒥ Inulrammiit Maligaliurvikmi Apiqhuidjutingit Nunavunmi YOUTH JUSTICE COURT OF NUNAVUT Tribunal de la jeunesse de Nunavut Citation: R. v. I.J., 2019 NUCJ 15 Date: 20190909 Docket: 01-17-23 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: I. J. ________________________________________________________________________ Before: Chief Justice Sharkey Counsel (Crown): T. Buffalo Counsel (Accused): S. Boydell, S. White Location Heard: Iqaluit, Nunavut Date Heard: June 21, 2019 Matters: Application for judicial stay under s. 11(

b) of the Canadian Charter of Rights and Freedoms REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” Anonymized Judgment Disclaimer : This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random. Contents I. INTRODUCTION .. 4 II. OVERVIEW ... 4 III. BACKGROUND .. 6 A. The night of the alleged offence . 6 B. The complainant’s medical condition .. 6 C. The DNA results . 7 D. Case developments in 2018 . 8 E.

The third party assessment 9 IV. COURT APPEARANCES AND PRE-TRIAL CONFERENCES .. 10 V. JORDAN AND THE RIGHT TO PROMPT JUSTICE .. 11 VI. APPLYING JORDAN IN NUNAVUT: UNIQUE CHALLENGES .. 13 VII. THE POSITION OF THE PARTIES .. 14 A. The Crown .. 14 B. The Defence . 15 VIII. ANALYSIS .. 17 IX. CONCLUSION .. 19

I. INTRODUCTION [ 1 ] On 21 June 2019, I heard an application to have the accused’s charge of sexual assault judicially stayed on the basis that his constitutional right under

section 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time had been infringed. A judicial stay would stop the case and put an end to the proceedings. [ 2 ] On 6 September 2019, I notified the parties of my decision to allow the application and to enter a stay. This would allow the parties sufficient advance notice to inform witnesses and provide certainty to the accused. [ 3 ] Subsequently, when the case was spoken to in Court on 9 September 2019, the presiding judge formally endorsed the Information and stayed the proceedings. II.

OVERVIEW [ 4 ] IJ was 17 years old when he was charged with sexually assaulting a 17-year-old girl, the complainant. The incident took place in August 2017, in one of Nunavut’s smaller communities where they both lived. [ 5 ] The Crown’s case was that the accused youth, IJ, engaged in non-consensual sexual activity with the complainant and, shortly afterwards, “confessed” to an RCMP officer. Defence Counsel disputed the allegation of non-consensual sex, as well as the validity of her client’s confession. [ 6 ] The complainant has had a significant mental disability since birth.

The central issue to the case was whether the complainant, as a matter of law, could consent to sexual activity considering her medical condition. To prove that the complainant lacked such capacity the Crown needed to obtain a medical opinion from a psychiatrist or psychologist. Retaining an expert for this purpose was within the control of the Crown—and only the Crown. [ 7 ] The Crown proceeded by way of

summary conviction in Youth Court. The timeline set by the Supreme Court of Canada for a Youth Court case to be completed is 18 months from the date of the alleged offence to the date fixed for trial. The law, however, is flexible, and charges will not be thrown out if there are compelling reasons why this timeline has been exceeded. [ 8 ] The Defence brought the delay application on 14 May 2019 and I heard argument on 21 June 2019. To ensure that there could be no further delay, I also fixed a trial date for 21 October 2019.

This October trial date became moot in September when I ordered a judicial stay of proceedings. [ 9 ] The charge was laid on 8 August 2017, the 18-month ceiling was reached on 8 February 2019, and the date eventually fixed for trial was 21 October 2019. Thus, the total delay would have been a period of 26 months and 5 days. [ 10 ] IJ made his first appearance in court in his home community in October 2017. Between October 2017 and April 2019 there were numerous additional court appearances in both his home community and by his lawyers in Iqaluit.

In addition, the lawyers were involved in several pre-trial conferences.

[ 11 ] However, it was not until late February 2019—after 18 months had passed from the time IJ was first charged—that the Crown decided to secure a medical assessment respecting the complainant’s capacity. [ 12 ] Further, the Crown did not retain their own expert to examine the complainant.

Rather, in late March 2019, the Crown came into possession of an assessment which had been completed a few weeks earlier at the request of Nunavut’s Public Guardian for purposes unrelated to IJ’s charge. [ 13 ] The case turned on the failure of the Crown to secure an assessment of the complainant within the 18-month timeframe: 8 August 2017, when the charge was laid, and 8 February 2019.

I found that there were no exceptional circumstances which would allow the Crown to continue its prosecution of IJ. [ 14 ] The Supreme Court of Canada in R v KJM , 2019 SCC 55 acknowledged that youth can be described as “the most vulnerable members of our community.” [1] Delay in youth cases merits special consideration, given the risks they experience. III. BACKGROUND A. The night of the alleged offence [ 15 ] On 8 August 2017, at around 2:00am, TW, a power plant employee, was working the night shift.

He heard some movement coming from a residential trailer next to the plant, so he went to investigate. [ 16 ] He found two youths, a boy and a girl, in the trailer. The boy had his shirt off, and the girl was wearing only her underwear. It appeared to TW that they had just taken a shower. TW knew both youths and told them they were not supposed to be in the trailer, at which point the boy took off. TW told the girl to get dressed while he waited outside. He then called his wife who came and took the girl home. The girl was the complainant, and the boy was the accused youth, IJ.

They were both 17 years old at the time. [ 17 ] According to the mother of the complainant, her daughter did not seem upset at all when she came home. An hour or so later, however, the mother received a Facebook message from TW’s wife, who talked about her husband finding the two 17-year-olds in the trailer. This news alarmed the complainant’s mother, who then took her daughter to the local health center. [ 18 ] The complainant was examined by a nurse who followed a sexual assault protocol which involved taking swabs for DNA analysis.

The RCMP were also summoned and the detachment commander came to the health center. Shortly afterwards, the accused showed up and told the RCMP officer that he had “raped” the complainant. [ 19 ] IJ was then arrested and taken to the detachment cells. A few hours later he spoke to legal counsel and declined to say anything more about what happened. Later the same morning an Information charging IJ with sexual assault was sworn and he was released on bail. His first court appearance was set for 23 October 2017—some two months later when the Nunavut Court of Justice would next be visiting the community. B.

The complainant’s medical condition [ 20 ] The complainant has had a permanent and medically diagnosed condition since birth which features significant intellectual or cognitive disability. For example, when the police attempted to interview the complainant about sex with IJ, she was unable to provide a narrative about what happened. She was only able to provide simple “yes” or “no” answers in the presence of her mother (and a social worker who assisted with

interpretation). The complainant indicated, by using a stick figure, that IJ touched her on the neck and genital areas. When asked the difference between the truth and telling a lie, it appeared she did not understand. Before March 2019, the complainant had never been clinically assessed in terms of her capacity.

[ 21 ] Accordingly, from the very first police interview and initial disclosure, the complainant’s capacity to consent to sexual activity, as well as her capacity to communicate and testify as a witness, were clear issues for both Crown and Defence. [ 22 ] The Crown indicated to Defence Counsel at the earliest stages of the proceedings that they were considering obtaining a medical opinion regarding the complainant’s capacity to consent to sexual activity. This process would require having the complainant assessed by a forensic psychologist or psychiatrist.

In turn, the Defence indicated to the Crown that their client, IJ, would not be entering a plea to the charge until such a medical opinion was forthcoming. C. The DNA results [ 23 ] Further, the Defence clearly indicated to the Crown that given the client’s youth and his level of sophistication they wanted DNA results from the RCMP laboratory before making a plea. The Court was told that the RCMP forensic laboratory has limited resources, and normally no DNA analysis is performed unless the Crown knows the accused is challenging the case.

The accused’s plea of not guilty triggers DNA analysis; if the accused pleads guilty (or indicates he intends to plead guilty) then no analysis is performed. This practice of selective analysis is in my view somewhat troubling, but beyond the purview of the case before me. [ 24 ] Both Crown and Defence Counsel clearly indicated to the Court at the very first appearance, in October 2017, that one reason the case needed to be adjourned was so that medical evidence (including DNA analysis) could be obtained.

The Crown agreed to direct the RCMP to get the DNA sample analyzed before IJ made a plea. [ 25 ] Despite the Crown’s early direction, the RCMP did not send the DNA sample out for analysis until April 2018. The analysis was completed and disclosed to the Defence in July 2018. It showed a positive result, indicating that IJ had engaged in sexual relations with the complainant. D.

Case developments in 2018 [ 26 ] Crown Counsel was frank in telling the Court that there was some debate at the Crown’s office during 2018 as to whether a psychiatric assessment of the complainant was needed at all, despite her well known medical condition. [ 27 ] Accordingly, in September 2018, some five months before the expiration of the Jordan timeframe, the Crown with carriage of this case visited with the complainant’s mother.

This interview took place in the community at the request of the Crown and it is commendable that the Crown took this initiative. [ 28 ] During this interview, the mother told the prosecutor that the complainant had previously (and recently) been involved in a consensual sexual relationship with a young man her own age. The mother had no concerns about this relationship.

The mother said the reason she disapproved of the accused (IJ) was because in her view, he was too closely related to the complainant for a sexual relationship. [ 29 ] According to the Crown’s submissions, this new information led the prosecutor to reconsider the need for an assessment of the complainant’s capacity. Indeed, the complainant’s personal choices indicated that she might have capacity to consent to sexual activity. [ 30 ] Accordingly, the Crown directed the RCMP to investigate this aspect of the case. The complainant’s mother and other local citizens made statements.

Police also made efforts to obtain the complainant’s school records and to interview teachers and/or teaching assistants who might have some insight as to the complainant’s capacity. [ 31 ] This further area of inquiry of triggered new disclosure obligations on the part of the Crown. While most of the statements obtained had been disclosed to the Defence by December 2018, there was still outstanding disclosure as late as 4 March 2019.

E. The third party assessment [ 32 ] On 12 March 2019 at the instance of Nunavut’s Public Guardian, a clinical psychologist whose firm is retained on a regular basis by the Public Guardian came to the community to do a competency assessment on the complainant.

The purpose of the psychologist’s assessment was to appraise the complainant’s level of psychological function to inform her family and other caregivers about the level of care she would require as she became a legal adult. [ 33 ] In his report, dated 25 March 2019, the psychologist concluded that the complainant displayed markedly diminished capacity in an inventory of areas which included “consenting to sexual relations.” [2] [ 34 ] The Crown obtained a copy of the psychologist’s report, which it disclosed to the Defence on 29 March 2019.

Shortly after receiving the report the Defence made it clear to both the Crown and the Court that they intended to challenge the psychologist’s finding respecting the complainant’s capacity to fully consent to sexual activity. [ 35 ] In addition, the admissibility of the psychologist’s report and ultimately his ability to testify as a witness were likely to be the subject of dispute in this case. The report was commissioned by the Public Guardian pursuant to a statutory scheme.

I was told during the hearing that no court order was obtained by the Crown to have the report produced, as is normally the case respecting production of private third party therapeutic records in criminal proceedings. However, in the final analysis, questions surrounding the provenance of the psychologist’s report are not pertinent to what I must decide in this case. IV. COURT APPEARANCES AND PRE-TRIAL CONFERENCES [ 36 ] The Nunavut Court of Justice usually travels to the community where this case originated a total of three times per year: in January, June, and October.

The Court does, however, follow up on cases pending in this community between these sessions. In this case there were some 15 court appearances between October 2017 when IJ made his first appearance and May 2019 when Defence Counsel filed this stay application before me. Twelve of these 15 appearances took place in Iqaluit. There were only three appearances in the community during this entire period.

In addition, at the joint request of counsel, the Court held four pre-trial conferences in May 2018, July 2018, February 2019, and April 2019. [ 37 ] The purpose of these various court appearances and pre-trial conferences was to allow the Crown to update the Court on outstanding matters. There were two main areas of concern that arose. 1. First was the Crown’s disclosure obligation. Initially, these disclosure discussions focused on the status of the DNA analysis (which was eventually disclosed in July 2018).

Later, after September 2018, these discussions focused on additional witness statements and documentation arising from the September 2018 meeting between Crown Counsel and the complainant’s mother. 2.

Second was the question of the complainant’s capacity to consent to sexual activity and to testify as a witness (if necessary). [ 38 ] At the court appearance on 1 April 2019, shortly after receiving the psychologist’s report, the Crown advised the Court that it was now ready to proceed to trial at the earliest opportunity. [3] At that time, the earliest opportunity was in June 2019 in the community where the alleged offence took place. [ 39 ] A June 2019 court date in the community posed two problems. First, the psychologist’s assessment was not disclosed to the Defence until 29 March 2019.

Second, the psychologist was not available to travel to Nunavut. Further, this was not a case where the Court would have allowed an expert witness to testify via video or telephone given the import of the testimony offered and the limited video conferencing facilities in the community.

[ 40 ] Defence Counsel advised during the hearing of this application on 21 June 2019 that IJ would be pleading not guilty. Crown and Defence Counsel agreed that it was only the Defence motion respecting the psychologist’s evidence which would require any substantial pre-trial court time. To their credit, Counsel had reached agreement on other pretrial motions. [ 41 ] Accordingly, I fixed the trial date for 21 October 2019 in the community, subject to my ruling on this delay application. [ 42 ] The Crown suggested using an earlier court date in Iqaluit.

However, an earlier trial in Iqaluit might have required the accused and witnesses, including the complainant and her mother, to travel for the better part of a week. This would mean relocating all the civilians involved simply to accommodate the timeframe which the Crown conceded was pressing. V. JORDAN AND THE RIGHT TO PROMPT JUSTICE [ 43 ]

Section 11(

b) of the Canadian Charter of Rights and Freedoms gives any person charged with an offence the right to be tried within a reasonable time. In R v Jordan [4] the Supreme Court of Canada gave judges specific guidelines setting out reasonable timelines within which cases are expected to be concluded. [ 44 ] The point of these guidelines is not simply to justify the dismissal of cases not completed within the specified time. Jordan recognizes that participants in the criminal justice system (courts, crown prosecution services, and the defence bar) have a collective responsibility to ensure that cases are completed in a timely fashion. [ 45 ] Jordan also recognizes that compliance with

section 11 (

b) protects other constitutional rights of the defendant as well. Pending trial accused are presumed innocent and yet their lives are constrained and frequently placed on hold. Further, trauma suffered by victims of crime and stress upon witnesses continues unnecessarily when cases drag on beyond reasonable time limits. [ 46 ] Ultimately, Jordan stands for the principle that public confidence in the criminal justice system depends upon achieving reasonably prompt justice for everyone involved.

In the years since the Jordan decision, all courts in Canada have improved at achieving this aim, but there is still work to be done. [ 47 ] In Nunavut, the application of the Jordan guidelines depends upon the type of crime involved. In Jordan , the Supreme Court of Canada distinguished between the appropriate timelines for provincial and superior courts. It set the time limit for resolving matters in provincial court at 18 months and the time limit for resolving matters in superior court at 30 months.

However, the Supreme Court was silent on the approach to be taken in Nunavut, where there is no provincial or territorial court, only a unified superior court. Nonetheless, our court has applied the spirit of Jordan by distinguishing between

summary and indictable matters, respectively. To be clear, this means that the 18-month ceiling applies to matters on which the Crown proceeds summarily, and the 30-month ceiling applies to matters in which the Crown proceeds by indictment. [ 48 ] In the case before me, the Crown elected to proceed summarily in Youth Court. The 18-month ceiling therefore applied, not only because Jordan applies to young persons ( see R v KJM , 2019 SCC 55 ), but because the 18-month ceiling applies to all youth matters.

The 30-month timeline never applies in youth cases, even where the Crown proceeds by indictment. [ 49 ] In other Canadian courts, all youth matters proceed in provincial court (a Youth Court judge is a provincial court judge per s. 14(6) of the Youth Criminal Justice Act ) and all provincial court matters are subject to the 18-month timeline per Jordan .

In Nunavut, where there is no provincial or territorial court, our unified court has chosen nonetheless to apply the 18-month timeline when we preside as a youth court, whether the Crown proceeds summarily or by indictment. [ 50 ] The Supreme Court is clear in Jordan that these 18- and 30-month ceilings are presumptive: the Crown may show that exceptional circumstances justify the delay. If the Crown cannot discharge this burden, then the court will put an end to the case by entering a judicial stay of proceedings.

Exceptional circumstances are normally things which lie outside the Crown’s control in that they are reasonably unforeseen or unavoidable and cannot be reasonably remedied.

[ 51 ] Jordan provides that the list of what qualifies as an exceptional circumstance is open, since it is impossible to identify all possible circumstances that may cause delay. Ultimately, a determination of whether there are exceptional circumstances will depend upon the good sense and experience of the judge hearing the application.

In general, however, the court in Jordan said that exceptional circumstances fall into two categories: discrete events and particularly complex cases. [ 52 ] Where the exceptional circumstance relates to a discrete event, the delay reasonably attributable to that event is subtracted from the total delay.

If the exceptional circumstance arises from the case’s complexity, then the delay is reasonable, and no further analysis is required. [ 53 ] Discrete events include things like an illness involving a key participant in the trial, an unexpected event at the trial, or, as often happens in Nunavut, the cancellation of the trial because of weather and/or aircraft problems. [ 54 ] Particularly complex cases are cases that require an inordinate amount of trial time or trial preparation time because of the nature of the evidence.

The hallmarks of particularly complex cases include voluminous disclosure, many witnesses, significant requirements for expert evidence, charges extending over many years, multiple accused, and complex legal issues. If the Crown attempts to justify the delay by reason of a complex case, it must also demonstrate that a plan was in place to manage the complexity of the case. Complexity alone will not excuse delay. VI.

APPLYING JORDAN IN NUNAVUT: UNIQUE CHALLENGES [ 55 ] There is no question that applying the Jordan framework in Nunavut presents some unique challenges given both the size of and distances between Nunavut communities. Because the frequency of our court circuits to communities is population based, there are a few communities which are only scheduled to see the Court three times (or, in one case, twice) per calendar year. [ 56 ] Bychok J addressed these challenges in stark and poignant detail in the case of R v Anugaa , 2018 NUCJ 2 .

He suggested that Nunavut’s unique challenges might present a third category of exceptional circumstances that could justify delay under Jordan . [ 57 ] Bychok J was prepared to ascribe some nine months of “unique to Nunavut” exceptional circumstances delay to the fact that the Court only visited Mr. Anugaa’s community three times per year. Specifically, he deducted three months of delay from the overall time due to the three-month period between the laying of the charge and Mr. Anugaa’s first appearance in court in his home community.

He also deducted a further six months from the overall time due to the six-month period between Mr.

Anugaa’s appearance in assignment court in June 2016 and the setting of his trial date in January 2017. [ 58 ] The Crown relies on Anugaa for the proposition that the infrequency of court dates in the accused’s community ought to be considered as a “third category” of exceptional circumstance unique to Nunavut. [ 59 ] I do not agree with the proposition in Anugaa that time between court appearances outside of Iqaluit should be deducted from the total delay within the Jordan framework, even where those appearances occur in a community which the court visits only twice or three times per year. [ 60 ] Time periods between appearances in these communities cannot be ignored.

The correct approach should be that all parties, the Court, the Crown, and the Defence are diligent to ensure that cases are completed within the 18- and 30-month time frames. In Anugaa , Bychok J addressed the need for such an approach when he encouraged the use of audio and video technology. [ 61 ] Accused persons in small and large communities in Nunavut are equally entitled to have their cases dealt with in a timely fashion. When these options are not adequate to deliver a timely trial the Courts will consider the possibility of a judicial stay to safeguard the accused’s 11(

b) rights.

VII. THE POSITION OF THE PARTIES A. The Crown [ 62 ] The Crown asks that the application be denied and the case proceed to trial as scheduled on 21 October 2019. The Crown agrees that the time period for the purposes of the delay analysis is 26 months—from the date the charge was laid on 8 August 2017 until the date fixed for trial on 21 October 2019. [ 63 ] The Crown says, however, that the Defence is responsible for seven months of this delay. The Crown says the Defence failed (or refused) to enter a plea in a timely fashion.

For example, the Crown suggests that if the Defence had entered a plea of not guilty early in the proceedings, this would have triggered a prompt DNA analysis, which would have expedited the setting of a trial date. [ 64 ] The Crown also says the Defence either requested or acquiesced to numerous adjournments of the case, which further contributed to the overall delay. The Crown suggests that many of these adjournments were unnecessary. [ 65 ] The Crown says the law is clear that full disclosure is not required for an accused to make a plea to the charge.

So long as the disclosure provided is sufficient to allow an informed plea, the accused should be held responsible for any delay in pleading. In this case, the Crown says that Defence did have sufficient disclosure to make an informed plea. [ 66 ] The Crown acknowledges that even deducting the seven months it attributes to Defence delay this still leaves a net total delay of 19 months, which is one month beyond the time limit for this case.

The Crown says, however, that an exceptional circumstance has contributed to the delay and rebuts the presumption that the delay is unreasonable. [ 67 ] The Crown says that this exceptional circumstance is the complexity of the case. The complainant is low functioning, and the extent of her ability to testify and/or give consent to sexual activity had never been explored before the incident that gave rise to the charge.

Further, the Crown notes that after the meeting in September 2018 between Crown Counsel and the complainant’s mother, a significant amount of material (medical records from the health center and educational records from the school) needed vetting before being disclosed to Defence. [ 68 ] As noted above, the Crown also asserts that infrequent court dates in the community contributed to the delay in this case, accounting for an additional eight months’ delay: four months’ delay before the initial court appearance in the community and another four months’ delay between 21 June 2019 (when the Crown says it was ready to proceed to trial) and 26 October 2019 (the date fixed for trial). [ 69 ] The Crown suggests that this additional eight months of exceptional delay unique to Nunavut should reduce the net total delay from 19 months to 11 months.

By that calculation, the limit of 18 months has not been reached, and therefore the delay in the case is not unreasonable. B. The Defence [ 70 ] The Defence says that the Crown has inadequately managed this case and is now attempting to shift or transfer its delays to the Defence. [ 71 ] Further, the Defence says that the Crown is unable to rely on any type of unforeseen exceptional circumstance to justify this delay.

[ 72 ] The Defence ascribes the entire delay in this case to three factors. First, the time the Crown took to obtain and provide timely disclosure, particularly respecting the DNA analysis. Second, the time the Crown took to evaluate the reasonable prospect of conviction. And third, the time the Crown took to consider whether an expert opinion of complainant’s capacity was necessary, without ever actually obtaining such an opinion. [ 73 ] The Defence says the Crown should not escape responsibility for any of the delay; despite the factors discussed above, the matter was not complex.

Indeed, the Defence suggests that this case does not meet the criteria set out in Jordan for a complex case. The Defence says that neither the nature of the evidence nor the nature of the issue to be tried is sufficiently complicated or complex to justify the delay. To the contrary, the Defence suggests that the nature of the evidence was simple, involving only the question of the need to retain a forensic medical expert to provide an opinion.

The central issue was similarly straightforward: it involved the capacity of the complainant to consent to sexual activity and, if necessary, to testify as a witness. [ 74 ] The Defence says that the Crown cannot claim that the issue of capacity was reasonably unforeseen or unavoidable. The complainant’s physical and mental deficits were apparent and well known from the date the charge was laid, and information to that effect was contained in the initial disclosure package.

The question of retaining a forensic expert to assess the complainant was the subject of three judicial pre-trial conferences between May 2018 and February 2019. [ 75 ] The Defence points to the fact that the Crown did not even decide to secure an assessment until the end of February 2019—some two weeks after the 18-month Jordan time limit had passed.

The Defence says that the Crown’s choice not to seek an expert opinion until 19 months into the prosecution of the case is both unacceptable and unreasonable given the early notice the Crown had about issues with the complainant’s capacity. [ 76 ] Further, the Defence noted that while the Crown stated on the record several times (at the first appearance in October 2017 and again in January and May 2018) that they were awaiting DNA results to help with their assessment of a reasonable prospect of conviction, the RCMP did not request analysis of the samples until April 2018.

The results were not disclosed until July 2018, nearly one year after the charge was laid. [ 77 ] Finally, Defence says that no delay in this case should be attributed to the third category of exceptional circumstances alluded to by Bychok J in R v Anugaa .

Specifically, the Defence says that although the Court circuit only visits the community in this case three times per year, the two months between the date of the charge and the accused’s first court appearance should not be deducted from the overall delay. [ 78 ] The Defence also says that no other periods between court appearances in the community should be deducted because the infrequency of court dates in the community was sufficiently addressed by numerous appearances in Iqaluit and by using pre-trial conferences. VIII. ANALYSIS [ 79 ] The charge against IJ was laid on 8 August 2017.

Thus, the 18-month presumptive ceiling was reached on 8 February 2019. The Crown first notified the Defence in late February 2019 that they were awaiting the results of an assessment of the complainant (which had been scheduled by the Public Guardian for early March 2019). The Crown confirmed this position in Court on 4 March 2019. [ 80 ] IJ’s application was filed in May 2019 and heard by me on 21 June 2019 – at which time I fixed the trial date for 21 October in IJ’s home community.

Thus, the total delay from the time the charge was laid (8 August 2017) until the date fixed for trial (21 October 2019) is 26 months and 5 days. [ 81 ] The law allows that in fixing the total “net” delay, any time which is attributable to the Defence is to be deducted from the total. In my view the Defence is not responsible for any of this delay, and accordingly the total net delay is also 26 months.

[ 82 ] I reject the argument that by suggesting or acquiescing to adjournments of the case, the Defence has somehow contributed to the overall delay. To the contrary, the transcripts of the court appearances show a meaningful and sustained effort on the part of the Defence to move the case forward. [ 83 ] Similarly, the Crown suggestion that the case would have proceeded more quickly had the Defence simply entered a plea of not guilty is, with respect, disingenuous.

It was only after this application was filed that the Crown raised the issue at all. [ 84 ] The Defence did not make a formal application for disclosure.

However, the main purpose of so many adjournments of the case was to have the Crown meet its disclosure obligations, or to at least report to the Court as to why they have not been met – particularly during the first year of delay, when the request was to have the Crown produce the DNA results. [ 85 ] In addition, it is clear from the transcripts of the proceedings that the Defence was frustrated with the Crown’s failure to decide about obtaining a forensic assessment of the complainant.

The Defence made it clear, and the Crown accepted on the record, that no plea would be entered until both the DNA results and the Crown position regarding a capacity assessment were clarified. [ 86 ] For reasons I have already explained, I do not agree with an approach to Jordan which deducts time between court appearances in remote communities.

Further, in this case, any such issue is rendered moot by the numerous appearances in Iqaluit, as well as the pre- trial conferences. [ 87 ] The question then legitimately becomes whether the Court (and the various judges who presided at the numerous Court appearances and pretrial conferences) should have compelled the Crown to move the case forward – for example, by setting timelines for the Crown to make this critical decision respecting an assessment of the complainant. [ 88 ] However, the Crown was clear throughout the proceedings that the need for an assessment of the complainant was being considered simultaneously with the more general continuing assessment of the reasonable prospect of conviction in the case.

It is therefore not unusual for the Court to defer and allow the Crown time to complete these tasks. It is not for the Court to manage the Crown’s case. Further, the Defence has no power to obtain and the Court has no jurisdiction to order an assessment of the complainant. [ 89 ] This case turns on the failure of the Crown to take any initiative to secure an assessment prior to the expiration of the 18-month presumptive ceiling. It was clear from the initial police reports and disclosure that such an assessment would likely be needed.

The Crown was clear in court appearances prior to August 2018 that they were considering making such arrangements; in turn, the Defence was clear that the matter would not move forward with a plea until this decision was made. [ 90 ] This is not a case where the Defence (and the Court) were required to wait due to legitimate delays. Rather, it is a case where the Defence (and the Court) waited while the Crown deliberated. During numerous court appearances and pre-trial conferences, the Crown assured the presiding judge that they were considering the question of having the complainant assessed.

If the Crown waits too long to make critical decisions, they do so at their peril as the Jordan clock ticks away. [ 91 ] There are no exceptional circumstances as contemplated by Jordan which operate to excuse the delay, either discrete circumstances to be deducted from the total delay or complex circumstances rendering the delay reasonable. [ 92 ] I agree with the Defence position that the issues which caused the delay were obvious early in the proceedings and thus reasonably foreseeable by the Crown. This was not a complex case.

The nature of the issue to be tried was simple – namely, the complainant’s capacity to consent to sexual activity. In turn, the nature of the evidence required was also simple – namely, the need to retain a medical forensic expert to provide an opinion on the capacity issue. The meeting with the mother in August 2018 did not complicate the nature of the evidence required. The Crown’s uncertainty about the complainant’s capacity to consent only underscored that a medical assessment was crucial to the case since the time of initial disclosure.

IX. CONCLUSION [ 93 ] I find that the presumptive ceiling in this case of 18 months has been exceeded, and that the Crown has not discharged the burden of rebutting the presumption of unreasonableness because of exceptional circumstances. Accordingly, the applicant’s constitutional right to be tried within a reasonable time as guaranteed by

section 11 (

b) of the Charter has been infringed, and I order the proceedings stayed. [ 94 ] The principles set out by the Supreme Court in Jordan remind us that the authority of the state has distinct and defined limitations based on respect for an accused’s right to a trial within a reasonable time. [ 95 ] The demographics and geography of Nunavut represent distinct challenges for the Crown Counsel as—with limited resources— they work to satisfy the Jordan timelines.

These challenges, however, do not mean that residents of Nunavut communities should be asked to settle for diminished rights and greater burdens than other Canadians. [ 96 ] Instead, it means that governments must balance the resources they are prepared to commit to these prosecutions with the public safety value they place on adjudication. As with Canadians in all parts of the country, Nunavummiut are entitled to have their cases resolved within the parameters set out by the Supreme Court in Jordan . Dated at the City of Iqaluit this 9th day of September, 2019 ___________________ N.

Sharkey Chief Justice Nunavut Court of Justice