R. v. Josephee, 2016 NUCJ 8

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Josephee , 2016 NUCJ 08 Date: 20160316 Docket: 08-15-529 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Lyta Josephee ________________________________________________________________________ Before: The Honourable Mr. Justice Bychok Counsel (Crown): Sarah Arngna’naaq Counsel (Accused): Kathryn Kellough Location Heard: Iqaluit, Nunavut Date Heard: March 16, 2016 Matters: Crown Application for Adjournment REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] The accused, Lyta Josephee, is alleged to have committed an aggravated assault on Newkinga Kownirk in Iqaluit. The alleged assault is said to have taken place on September 17, 2015. The trial was scheduled to be held on March 3, 2016. When the case was called that day, the Crown applied for an adjournment of the trial. The Defence opposed the adjournment request. Given the potential implications of my decision, I adjourned my decision to permit counsel to file written arguments.

Crown counsel has filed written arguments and supporting affidavits with the court that I have read and considered. In light of those materials, I have advised the parties that I do not need to receive any further argument from Defence counsel. [ 2 ] These are my reasons for decision. II. FACTS [ 3 ] The first endorsement on the Information says that the accused appeared in court on November 30, 2015. The case was adjourned to December 14, 2015, due to outstanding Crown disclosure. The accused made three more court appearances before he entered his election on January 18, 2016.

He elected to be tried by a judge sitting alone without a preliminary inquiry, and he pleaded not guilty. The trial was scheduled that day for March 3, 2016. [ 4 ] The Crown prepared and served a subpoena on the complainant. The subpoena was served on February 22, 2016. The complainant resides in Pangnirtung. Travel arrangements were then made by the Crown’s travel coordinator to bring the complainant to Iqaluit to testify on March 3rd. [ 5 ] Crown counsel told the Court she was assigned the file “last week”.

Upon reviewing the file, she determined that there were three potential witnesses who had not been interviewed by the police. One of those witnesses is said to be a twelve-year-old child who was a sober witness to the incident. Crown counsel decided that further investigation was necessary. She consulted with senior counsel who advised her to seek an adjournment and to cancel the complainant’s travel arrangements. The reason for the adjournment request is to permit the police to interview and obtain statements from these potential witnesses.

Crown counsel was unable to explain why the investigator had not sought a statement from the child earlier. Nor could she explain why the investigator was not contacted earlier by her office to seek that statement. [ 6 ] The investigating officer, Constable [Cst.] Sebastien Ouellette, filed an affidavit in support of the adjournment application. He states that he and his partner, Cst. Hamie Belhumeur, attended the scene of the incident on September 17, 2015. The complainant was outside the residence. The police were invited inside. There were two intoxicated adults and the twelve year-old child inside. Cst.

Ouellette said he spoke to the child and formed the belief that the child had witnessed the incident. “Due to the events that followed”, he said he did not take a statement from the child that evening. He returned to the scene on his next shift the next evening and he spoke to one of the two adults who had been present. That witness stated that she had been highly intoxicated at the time and had little recollection of events. She also refused to provide a statement. No further investigation was conducted by the police until late in February, 2016. Cst.

Ouellette did not provide any explanation as to why he failed to obtain a statement from the sober witness. [ 7 ] Cst. Ouellette stated that the police did not receive any Crown request for re-investigation until February 24, 2016, when he was contacted by Crown counsel. At Crown request, Cst. Ouellette later spoke to the two adults who had been in the house during the incident. Each person told him they were too intoxicated to remember what happened. Cst. Ouellette asked to speak to the child, but was told the child “was not available”.

He stated he intends to make further attempts to obtain a statement from the child. III. POSITIONS OF THE PARTIES

[8] In her written submissions, Crown counsel argues that the Court should grant a short adjournment to permit the police to obtainthe statement at issue. She states that the case should be tried on its merits, and that “it is important to present the best evidenceavailable”. Furthermore, the Crown anticipates evidentiary problems with the quality of the complainant’s evidence. The complainant issaid to have been highly intoxicated and belligerent with the police on September 17th. Crown counsel acknowledged that the Crownought to have requested the re-investigation in a more timely manner.

However, she did not provide any explanation as to why that wasnot done. She asserted that an adjournment would not prejudice the fair trial rights of the accused. Finally, she stated that the Crowndecision to cancel the complainant’s travel was justified to save the significant travel expense where “there had been advance notice todefence counsel that an adjournment was to be sought”. [9] Defence counsel replied that the investigation “should have been done in a timely manner”. It also should have been obvious atthe prosecutor file review stage that further investigation was required.

The accused has been subject to bail restrictions sinceSeptember, 2015. Defence Counsel also expressed concern that the Crown took it upon itself to cancel the complainant’s travel beforehaving the adjournment request adjudicated by the Court. As I stated earlier, the Defence opposes the adjournment request. IV. LAW [10] The law pertaining to adjournments and unavailable witnesses is well settled. The Supreme Court of Canada set out threeprerequisites in Darville v The Queen, (SCC), [1956] SCJ No 82, (1956), 25 CR 1. Those prerequisites are as follows: a. The evidence of the witness is material to the case; b.

The party seeking the adjournment is not guilty of laches, or negligence, in failing to have the witness attend court; and, c. The court is satisfied there is a reasonable expectation that the witness will attend court if the case is adjourned. V. ANALYSIS [11] The Crown seeks an adjournment of this prosecution on the day of trial.

It does so for three reasons: because the investigatingpolice officer failed to interview and obtain a statement from a material witness, because the local prosecution office failed to review itsfile until one week before the scheduled trial, and, because the Crown took it upon itself to cancel travel arrangements for thecomplainant. This application raises several issues that strike at the heart of our administration of justice.

As I weigh the arguments infavour and against the adjournment request, I remind the parties and the public of the principles that must govern my analysis. [12] In our free and democratic society, police and prosecutors are entrusted with tremendous legal power and discretion. On a day-to-day basis, both institutions operate as independent agencies of the state. Their employees are sworn to uphold the law, and to protect thepublic. In recognition of the difficult roles they play, each agency is afforded special protections to secure their independence fromoutside interference.

The delegation of this power and discretion, though, also comes with a corresponding responsibility. The authoritiesare required to act in all cases with due diligence and professionalism. One of the roles of this court is to hold the authorities publiclyaccountable for their actions in a way that defends the constitution while fostering confidence in, and respect for, the administration ofjustice. This court must also protect the right of all Nunavummiut under the Canadian Charter of Rights and Freedoms,

Part I of theConstitution Act, 1982, being

Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], to a trial within a reasonable time. I mustconsider these fundamental principles as I assess whether the Crown is entitled to an adjournment of this case. [13] On the facts before me, I find that the absent witness is material. However, the Crown did not present any evidence respecting thewitness’ present circumstances or whereabouts. Furthermore, the police and the local prosecution office were each negligent in theperformance of their respective duties.

Consequently, the Crown is not entitled to an adjournment. [14] The negligence I have highlighted reveals a concerning lack of oversight within both agencies. Not only did the investigatingofficer fail to complete his investigation, but the file was processed and forwarded onto the prosecution without any evident internalreview. Neither the investigating officer, in his affidavit, nor Crown counsel, offered any explanation for this situation. No evidence wascalled concerning internal Royal Canadian Mounted Police checks to ensure quality control. Whatever system may have been in place in

September, 2015, it failed to catch and correct this obvious deficiency in the investigation. [ 15 ] This is not the first instance where this court has been made aware of incomplete police investigations. Indeed, there was another case scheduled on March 3rd, where the very same issue arose. In that case, the police had failed to attempt to obtain a statement from another obviously relevant witness. They also failed to seize evidence at the scene.

The prosecutor was obliged to present her case without the assistance that the witness and evidence would have afforded. [ 16 ] This regrettable situation was compounded by the negligence of the prosecution office. Both Crown and Defence counsel stated that it was immediately obvious to them that the investigation was incomplete. They had good reason to come to that conclusion. Why, then, was that obvious deficiency not discovered and addressed by the Crown in a timely manner? Again, Crown counsel did not offer any explanation. The Court is left to guess.

In our justice system, the Crown is required by law to assess and to evaluate its prospects of conviction at each step in the process, not just one week before trial. The failure to do so in this case was negligent. [ 17 ] There is another concerning aspect to this case. The Crown decided to cancel travel arrangements for its complainant without first having its adjournment request adjudicated. It should have been obvious to the Crown that it had a weak argument, at best, to get an adjournment. Nevertheless, it chose to run the risk of not bringing in the complainant from Pangnirtung.

Having failed to secure an adjournment, the Crown has put itself into the following embarrassing position: it has no case to call against the accused. [ 18 ] Furthermore, I find that an adjournment under these circumstances would violate the accused’s Charter right to a trial within a reasonable time. [ 19 ] I am acutely aware that the result of my decision will be the dismissal of a very serious allegation. And I agree with Crown counsel that the public has a right to have serious matters litigated, and to have them tried on their merits.

As I stated before, however, the court has an overriding duty to hold police and prosecutors strictly accountable for the exercise of their authority. This court cannot be seen to sanction this level of negligence. To adjourn this case would send a message that the authorities may act in any way they please, without consequences. Such a result would undermine public confidence that this court will protect the rights of all Nunavummiut. [ 20 ] This case also serves as a reminder to the legal profession in Nunavut. It illustrates the importance of seeking adjournments well in advance of the scheduled trial date.

Where circumstances change at the last minute, especially where witness travel is involved, counsel should always seek judicial guidance. VI. CONCLUSION [ 21 ] Mr. Josephee, please stand up. I have ruled that the police and prosecution were negligent in the way they handled your case, and that the Crown is not entitled to an adjournment. The Crown did not come to court prepared to prosecute your case. Therefore, the charge against you is dismissed. Your bail conditions are over, and you are free to leave. Dated at the City of Iqaluit this 16th day of March, 2016 ___________________ Justice P.

Bychok Nunavut Court of Justice