R. v. Dempsey & Oujukoaq Fisheries Ltd., 2016 NUCJ 32

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Dempsey & Oujukoaq Fisheries Ltd., 2016 NUCJ 32 Date: 20161214 Docket: 08-13-414 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: David Dempsey & Oujukoaq Fisheries Ltd. ________________________________________________________________________ Before: The Honourable Madam Justice Tulloch Counsel (Respondent): Barry McLaren; Sarah Bailey Counsel (Applicant): Geoffrey Spencer Location Heard: Iqaluit, Nunavut Date Heard: November 25, 2016 Matters: 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, s. 11(b) ; Voir Dire REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] An application on behalf of David Dempsey [Dempsey] & Oujukoaq Fisheries Ltd. [Oujukoaq], has been made seeking a stay of proceedings on the basis that the right of the accused to be tried within a reasonable time, pursuant to 11(

b) of the 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 ], has been violated. [ 2 ] The applicants, Dempsey and Oujukoaq , are charged that on or about October 20, 2012, they were fishing for Greenland halibut in a closed fishing area contrary to

section 78 of the Fisheries Act , RS 1985, c F-14 [ Fisheries Act ] . [ 3 ] This delay application is being heard ten days before the next scheduled trial date. [ 4 ] The court was first notified of an 11(

b) Charter application in October and it was discussed during a pre-trial conference held on October 26, 2016, wherein the trial date of December 5-9, 2016, was cancelled. [ 5 ] I heard a full day of submissions from the Crown and Defence on November 25, 2016. [ 6 ] I am now prepared to make my decision. II. THE JORDAN ANALYSIS [ 7 ] The Supreme Court of Canada decision in R v Jordan , 2016 SCC 27 , 335 CCC (3d) 403 [Jordan] , was released on July 8, 2016. It is now the leading case with respect to how to appropriately calculate unreasonable delay pursuant to

section 11(

b) of the Charter . [ 8 ] Jordan together with the SCC’s companion case of R v Williamson , 2016 SCC 28 , [2016] SCJ No 28 (QL) [Williamson] , released at the same time, focusses on the importance of timely justice. The court felt that there was a strong need to address what they referred to as a “culture of delay” within the justice system. They felt an obligation to provide a new analysis that must be considered by all courts in an effort to minimize the problems they identified.

Although it is the accused that is directly impacted by delay, the SCC saw this as a societal responsibility. [ 9 ] Accordingly, the court in Jordan set presumptive ceilings for delay. The case established a ceiling of 18 months for provincial court matters proceeding without a preliminary inquiry and 30 months for provincial court matters involving a preliminary inquiry.

For matters in superior court, the ceiling was also set at 30 months. [ 10 ] This is a case where both Crown and Defence agree that the delay from the laying of the charge to the anticipated end of the trial is just over 42 months. [ 11 ] In order for me to decide whether or not the delay in this case exceeds the presumptive ceiling, I must first do three things:

(

a) Establish what the ceiling is in this particular case; (

b) Review the record carefully to establish any delay that was solely attributed to the Defence or was the subject of a Defence waiver, and ; (

c) Subtract Defence delay to establish the appropriate net delay. [ 12 ] If the net delay exceeds the applicable presumptive ceiling, the burden then shifts from the Defence to the Crown. [ 13 ] The Crown must then convince the court on a balance of probabilities that there were exceptional circumstances (categorized as discrete events) which occurred to make the delay reasonable.

These are then subtracted from the net delay to determine the appropriate remaining delay. [ 14 ] Any period of delay that the Crown or the system could have reasonably mitigated does not count. [ 15 ] If the remaining delay exceeds the presumptive ceiling, the Crown must demonstrate that the case was particularly complex and thus the delay was justified. [ 16 ] If the remaining delay falls below the presumptive ceiling, the Defence must demonstrate that it was nonetheless unreasonable. A.

What is the presumptive ceiling in this particular case? [ 17 ] This case involves a regulatory offence under the Fisheries Act . On December 2, 2013, the Crown proceeded by way of

summary conviction. [ 18 ] In all other jurisdictions within Canada, this is a charge that would be tried in Provincial Court. In NWT and the Yukon such a case would be tried in Territorial Court. [ 19 ] The Nunavut Court of Justice is unique because it is the only single level trial court in Canada. Section 573(1) of the Criminal Code of Canada , RSC 1985, c C-46 [ Criminal Code ] says the following: The powers to be exercised and the duties and functions to be performed under this Act by a court of criminal jurisdiction, a

summary conviction court, a judge, a provincial court judge, a justice or a justice of the peace may be exercised or performed by a judge of the Nunavut Court of Justice. [ 20 ] Defence points to a number of cases including the Ontario Superior Court of Justice decision in R v Christie, [2003] OJ No 1240 (QL) , 57 WCB (2d) 265 , to support his argument that the presumptive ceiling in this case is 18 months. That case says at paragraph 3(3): “[a]

summary conviction offence is one that may only be tried by a provincial court judge or a justice.” [ 21 ] Crown counsel points to Section 573(2) of the Criminal Code to support their position that the presumptive ceiling in this case should be 30 months. That

section says as follows: “A power exercised or a duty or function performed by a judge of the Nunavut Court of Justice under subsection (1) is exercised or performed by that judge as a judge of a superior court.” [ 22 ] Further, the Crown made submissions that because this is a complex case involving considerable trial time and requiring a voir dire, it is comparable to a provincial court trial wherein a preliminary inquiry has taken place.

[ 23 ] On this last point, a voir dire is a legitimate application and the SCC decision in Jordan does not equate a preliminary inquiry with a voir dire. [ 24 ] There is no doubt that judges in Nunavut wear different hats; sometimes during the same court proceeding. [ 25 ] That being said, when dealing with matters proceeded summarily by the Crown, their function is akin to a provincial court judge.

This is supported by section 573(3) of the Criminal Code which talks about the same limitations as a provincial court judge when presiding at a preliminary inquiry. [ 26 ] It is also supported by Nunavut’s system of appeal. [ 27 ] Further, the complexity of the case has nothing to do with the determination of the presumptive ceiling under the Jordan analysis. [ 28 ] I agree with the Defence that it would be wrong to find that just because Nunavut is a single level trial court, all offences for purposes of delay would attract the higher presumptive ceiling of 30 months. [ 29 ] I appreciate that the Crown in this case is not asking me to do that, but it would be unfair to treat this case different from other cases where the Crown has proceeded summarily. [ 30 ] Accordingly, I find that the presumptive ceiling in this case is 18 months.

B.

What does the record show in terms of delay attributed to the Defence? [ 31 ] The total delay in this case is calculated from the date that the charges were laid (May 31, 2013) to the end or anticipated end of the trial (Dec. 9, 2016). [ 32 ] In order to calculate the net delay, I will use the 42 months that both counsel have used in their materials and throughout their submissions. [ 33 ] I have very carefully reviewed the record of appearances with respect to this matter which must be the first step in any application for delay under the Jordan analysis. [ 34 ] Jordan makes it very clear that in calculating net delay I must only subtract those periods where the delay was caused solely by the conduct of the Defence or those periods where the Defence has specifically waived their 11(

b) Charter rights. (i). June 3, 2013, transcript [ 35 ] The accused’s first appearance in the Nunavut Court of Justice took place on June 3, 2013. [ 36 ] At that time, the Crown proceeded summarily and Defence asked that the case be adjourned. Defence sought a date that would not interfere with the applicant’s fishing season which was identified as being from mid-May to mid-November. The following exchange took place between the Court and the representative appearing for the accused:

THE COURT: I take it, sir, in making that request for Dempsey and the company they are giving up their right to having a speedy trial in this matter? MR. KAPLEGBO: Yes Your Honour. { Transcript : p 3 at line 22} [ 37 ] The Court then adjourned the matter to a date when the accused would be able to be present. The date was December 2, 2013. [ 38 ] Those six months are clearly attributable to the Defence. (ii). December 2, 2013, transcript [ 39 ] Defence counsel, Ms. Molgat, had just recently been retained by the applicants and she requested an adjournment to February 3, 2014.

Defence counsel clearly waived any delay { Transcript : p 3 at line 17}. [ 40 ] Those two months are clearly attributable to the defence. (iii). February 3, 2014 to Aug. 11, 2014, transcripts [ 41 ] The record shows that during this period of time there were six court appearances. Each one is attributed to both Defence and Crown. These adjournments were for the purpose of allowing resolution discussions to take place between the parties prior to setting a date for trial. (iv). August 11, 2014, transcript [ 42 ] It was at this point in the proceedings that the Crown asked to set a date for trial.

Dates in January, February, and March of 2015, were suggested in order to accommodate the accused’s participation in the fishing season. The Crown indicated five days for their evidence and one or two extra days were added by the Defence. Counsel on behalf of Dempsey and Oujukoaq entered not guilty pleas. [ 43 ] Two dates were set at this time. The first date was requested by the Defence with respect to the admissibility of Captain Dempsey’s statement given at the time of the alleged offence.

That date was set for January 7, 2015. [ 44 ] The Trial Coordinator indicated to the court that there were no other available dates during the first part of 2015. Defence counsel advised the court that dates in 2016 were fine with him. The transcript commencing at p 5, line two, says the following: THE TRIAL COORDINATOR: We don’t have dates for the beginning of next year at all. We had discussed this already; I was discussing it with his assistant actually. We are looking at 2016 dates if you want the beginning of the year. MR.

MAY: So dates in 2016, if that is what’s available, that’s fine with counsel for the defence . THE TRIAL COORDINATOR: Are January, February and March the only time when fishing is a down season? THE COURT: That is the problem, but I want to make clear to defence counsel that we can have an earlier trial date than that, and is your client prepared to waive his 11(

b) rights?

MR. MAY : Yes, Your Honour, both Mr. Dempsey and Oujukoaq Fisheries are prepared to waive 11(b), understanding they have been accommodated on the setting of the date. [ 45 ] The trial date was then set for January 11, 2016. [ 46 ] During argument, counsel for the Defence was prepared to acknowledge responsibility for 7 months of this delay (from the issuance of the decision on the Charter application to the trial date). [ 47 ] The record is clear that Defence waived their Charter 11(

b) rights from August 11, 2014 (the date the trial date was set) to January 11, 2016. This is a total waiver of 17 months. [ 48 ] We have a very busy court

schedule in this jurisdiction and having to accommodate a six or seven month period when the accused are not available due to their own economic interests causes the court additional challenges which cannot easily be met. [ 49 ] This is the reason why the trial date was set almost a year and a half ahead of time. [ 50 ] It is the very reason that the court sought to have Defence counsel waive their 11(

b) Charter rights at that time. [ 51 ] Dates in January, April, July, and August of 2015, were simply to complete interim matters, set pretrial conferences, and to confirm the January 2016 trial date. [ 52 ] I am disappointed that in spite of this express waiver, Defence chose to cancel the trial date which had been agreed upon to accommodate the applicants in favour of bringing this application for delay. [ 53 ] Those 17 months are clearly attributable to the Defence. C.

What is the net delay in this case? [ 54 ] The total delay in this case is 42 months and 25 days. [1] [ 55 ] The delay attributable to the Defence is 25 months. That means that the net delay in this case is 17 months and 25 days. III. CONCLUSION [ 56 ] The net delay in this case does not exceed the presumptive ceiling although it comes very close. [ 57 ] This, of course, does not conclude the matter. [ 58 ] I must now turn my mind to whether or not the Defence has demonstrated that the delay was nonetheless unreasonable.

[ 59 ] To do this, the Defence must establish two things: (1) that it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have ( Jordan , para 48 ). [ 60 ] From my careful review of the record in this matter, I am not convinced on a balance of probabilities that the lengthy delay in this case is unreasonable. [ 61 ] It is clear from the very first appearance that the Crown and the Court sought to accommodate the accused’s economic interests in setting court dates outside their fishing season which was said to be from mid-May to mid-November. [ 62 ] Mr.

Dempsey only appeared in court once which was for the purpose of giving evidence on the Charter application heard on January 7, 2015. [ 63 ] A representative from Oujukoaq Fisheries Ltd. also appeared only once in 2013, on the first appearance. [ 64 ] Apart from those two instances, both parties have been ably represented by counsel throughout. They have not had to appear in court.

They have not had to give up their livelihood. [ 65 ] On each and every court appearance, the record shows a spirit of full cooperation between Crown and Defence. [ 66 ] Disclosure was provided promptly to the Defence and the case has been pre-tried on a number of occasions. [ 67 ] The file has gone through three different Defence counsel and three different Crown prosecutors have been assigned. [ 68 ] It is unfortunate that the first trial date had to be adjourned because the Crown was not prepared to proceed.

This delay is fully attributable to the Crown and that is why the court chose to make the next trial date peremptory on them. [ 69 ] Both Crown and Defence are at fault for not following up with each other in a way that would expedite the proceedings. [ 70 ] Prior to the first trial date in January of this year, both Crown and Defence were new to the file and yet neither contacted the other to discuss matters before the pre-trial conference which the court set up one month before the trial was scheduled to proceed. [ 71 ] I cannot find that the Defence took meaningful steps to demonstrate a sustained effort to expedite the proceedings.

The same is true of the Crown, but in this case the onus is on the Defence { January 6, 2016 Transcript , p 7}. [ 72 ] The trial has now been set to proceed twice. The first adjournment lies at the feet of the Crown and this second adjournment lies at the feet of the Defence. [ 73 ] Through various pretrial conferences, the court has learned that this trial is likely to take a full five days or longer to complete.

The Crown we know is calling an expert witness (a hydrographer) who was unable to attend the first trial for medical reasons. [ 74 ] Because this application was brought just prior to the second trial date, the Crown had already prepared 16 subpoenas which are contained in the court file without being served. [ 75 ] The Nunavut Court of Justice does not often have these types of fishery cases before the court. It is a case with far reaching implications for commercial fishermen in Canada. It is a case that deserves to be decided on its merit.

[ 76 ] Accordingly, given the accommodation allowances and the added complexity of this case, I cannot find that this case took markedly longer than it reasonably should have. [ 77 ] I am therefore dismissing the application. Counsel should contact the court as soon as possible to set a new date for trial in this matter. [ 78 ] I must end by saying that it is extremely unfortunate, both for the accused and for the court, that valuable time has been lost in dealing with this application instead of proceeding with the trial date already set. Dated at the City of Iqaluit this 14th day of December, 2016 ___________________ Justice B. Tulloch Nunavut Court of Justice