R. v. Hodgson, 2021 NUCJ 12

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Hodgson, 2021 NUCJ 12 Date: 20210219 Docket: 08-17-173 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Daniel Hodgson ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): B. Flight Counsel (Accused): J. P. Rancourt, S. Siebert Location Heard: Iqaluit, Nunavut Date Heard: February 16, 2021 Matters: Request for adjournment of jury trial per Criminal Code of Canada, RSC 1985, c C-46, s. 645 REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: Publication ban lifted effective 06/04/2021 at the direction of the authoring justice. I. INTRODUCTION [ 1 ] The accused, Daniel Hodgson, stands charged with the second-degree murder of Bradley Winsor. The incident which gave rise to the charge happened in Iqaluit on May 19, 2017, three years and nine months ago. The trial of this case is scheduled to be held in Iqaluit starting on April 19, 2021. The Defence has applied to have the trial adjourned for nine more months until November 2021. The Crown supports the application.

I heard oral argument on Tuesday, February 16, 2021, and I reserved my decision until this morning, February 19, 2021. These are my reasons for denying the adjournment request. II. BACKGROUND [ 2 ] The police swore the charging document known as the Information on May 20, 2017. Mr. Hodgson is represented by Jean-Pierre Rancourt and Sara Siebert. Justice Todd Ducharme released Mr. Hodgson on bail on July 27, 2017. The Court committed Mr. Hodgson to stand trial after a preliminary inquiry on June 27, 2018. Mr. Hodgson is to be tried before a judge and jury.

For reasons which are not recorded on the Information, the Court did not set a trial date until February 4, 2019. That day, the Court scheduled the trial to start on November 12, 2019. [ 3 ] The trial did not proceed as scheduled. On November 4, 2019, the Court adjourned the trial at Ms. Siebert’s request for personal, compassionate reasons. On December 2, 2019, the Court rescheduled the trial to start on March 23, 2020. [ 4 ] The trial did not proceed on March 23, 2020 because the Court had suspended operations six days earlier due to the COVID-19 pandemic.

The Court resumed limited operations on June 1, 2020 and the file was adjourned to August 31, 2020. On August 31, 2020, the Court rescheduled the trial again, this time to April 19, 2021. Thus, the present Defence application is to adjourn the trial for the third time. III. THE PARTIES’ POSITIONS A. The Defence [ 5 ] The crux of the Defence adjournment application is found at paras 5-6 of the written Notice of Application, which is filed with the Court. The Notice reads: 5 Mr. Jean-Pierre Rancourt is not a resident of Nunavut and is therefore required to isolate before entering the Territory.

The 14-day isolation requirement is onerous and a hardship. In particular, Mr. Rancourt has health concerns (heart related). His physician has

advised him that the 14-day isolation will adversely affect his health. 6 In addition, Mr. Rancourt is a private practitioner and not a salaried employee and Mr. Hodgson would be required to bear the additional costs associated with the 14-day isolation period. [ 6 ] Mr. Hodgson, the Notice continued, enjoys a fundamental, though not an absolute right, to the counsel of his choice.

Furthermore, the Defence submitted: 11 … absent compelling reasons involving the public interest, the government and the courts need not be involved nor interfere with decisions about which counsel clients may choose to act on their behalf. [ 7 ] On Tuesday, Ms. Siebert emphasized that Mr. Rancourt must be physically present for the trial. She said that it would be unfair for Mr. Hodgson to have to pay for Mr. Rancourt’s possible two-week stay in an isolation hotel. [1] She said that counsel have spoken to the Court’s trial coordinator, and the April trial date reserved for Mr.

Hodgson can be filled by another case. She stated that the parties have done everything reasonable in the circumstances. However, Ms. Siebert also acknowledged that she had not contacted Court IT staff to see whether the Court could accommodate remote representation by Mr. Rancourt. [ 8 ] Mr. Rancourt stated on Tuesday that he is a resident of the United States of America. He stated that he had not attempted to secure exemption from the current Nunavut travel restrictions. He provided information concerning his heart issues dating back to 2015. Concerning his prognosis for the future, Mr.

Rancourt stated that it is not a question of his heart getting better by the proposed November trial date. He said he exercises extensively daily, cannot spend 23 hours a day in a hotel room, and eats a specific diet (the Mediterranean diet), which he said cannot be provided by a hotel. All of this would be a hardship. Mr. Rancourt also maintained that he has to have physical contact with Mr. Hodgson throughout the trial to represent him properly. B.

The Crown [ 9 ] In its written response filed with the Court, the Crown accepts the Defence premise that the mandatory travel restrictions mean that “The Applicant’s counsel of choice is, in effect, unavailable”. [2] In turn, Crown Counsel submits, this means that: 13 Despite the highly discretionary nature of the power to grant an adjournment, the Supreme Court of Canada has been clear that counsel becoming unavailable warrants an adjournment “unless there is good reason to deny it”. [ 10 ] This reference by the Crown refers to the 1976 Supreme Court of Canada case R v Barrette [3] which was cited recently in the British Columbia case of R v Sandoval . [4] This is how the judge in Sandoval explained the point: In R v Barrette … the Supreme Court of Canada made clear that when counsel has become unavailable for a trial, an adjournment will generally be necessary unless there is good reason to deny it. [5] [ 11 ] Indeed, the Crown also maintains that there may even be a need later in November 2021 to consider adjourning the case again, saying: 17 If the CPHO Order continues to restrict travel in the autumn of 2021, the Crown will assess its position on a further request for an adjournment at that time.

However, the Crown expressly consents to the present Application for an adjournment. [6] [ 12 ] On Tuesday, Benjamin Flight confirmed that the Crown supports the Defence application for the reasons presented by Defence

Counsel. He noted that father of the deceased was in Court and that the deceased’s mother was present remotely. He noted the parents are not in favour of the adjournment; their daughter will be going to university close to the proposed trial date in November. I infer from that comment that a November trial date would bring great anxiety and stress to the family. [ 13 ] The Crown acknowledged the Crown had not contacted the Court’s IT section, saying it was not the Crown’s job to do the Defence’s work for them.

I repeat that comment because as we shall see in a moment, the Supreme Court of Canada has declared that all justice stakeholders have a responsibility to see that trials occur in a timely fashion. The Crown declined to explain, at my request, why the Crown might not consent to a further adjournment request in November should the pandemic not have abated by then. Nor did the Crown comment on the practical effects a further (third) adjournment of the trial would have on the Crown’s prospective witnesses, and the families of those affected by the case. IV.

ISSUE [ 14 ] The issue I must decide is whether the circumstances of this case require me to exercise my judicial discretion in favour of granting the proposed adjournment. V. THE LAW RESPECTING THE ADJOURNMENT OF JURY TRIALS A. Criminal Code

section 645 [ 15 ] Section 645(2) provides that a trial judge “may adjourn the (jury) trial from time to time”. The Criminal Code provides no further guidance. [7] B. The common law [ 16 ] I cannot improve on the following statement of the governing common law than that explained by Code J in the Ontario case R v Millard : A long line of authority has held that the power to grant or refuse an adjournment is discretionary.

However, the trial judge must exercise the discretion judicially, that is, in accordance with proper legal principles and after considering and weighing the relevant circumstances of the particular case. [8] [ 17 ] Code J then outlined various relevant considerations: • Whether a denial of the adjournment would leave the accused person unrepresented in a complex or serious trial; • The gravity of the offence; • Whether there have been any previous adjournments; • The consequences of an adjournment for the parties involved; • Whether the adjournment request is made in an attempt to delay the trial; • The length of the adjournment and any consequent impact on the fair trial rights of the other party; • Whether the adjournment would have an impact on the accused person’s ability to pay the costs of his defence; and • The time the accused person has already had to retain counsel and prepare his defence. [9] [ 18 ] I now turn to my analysis with these considerations in mind.

VI. ANALYSIS [ 19 ] We live in challenging times. The current, ongoing pandemic has not abated; indeed, seven new COVID-19 cases in Arviat were announced on Monday; five new cases were announced on Tuesday, and six new cases were announced yesterday. There are currently 27 active cases in Nunavut. There are also increasing and credible warnings of an impending third wave in Canada. [10] As we enter the second year of this global pandemic, no one can predict with any certainty what the future holds.

This daunting and sober reality obligates each justice stakeholder to assess the current situation realistically and with flexibility. [ 20 ] Nunavummiut, and indeed all Canadians, expect their courts to continue to mete out justice despite the pandemic. It is not good enough for justice stakeholders to throw their arms up in the air and exclaim “let’s put things off until things return to normal”. We must accept that there is no guarantee that life will ever return to normal.

We must confront the current challenges squarely and look to how we may adapt to them in a way which balances society’s need to have its courts’ indispensable role continue while minimising health risks. [ 21 ] But for the Defence application, we have a precious window open in April wherein we can safely hold a COVID-compliant jury trial. So I begin my analysis with the current Nunavut travel restrictions. A. Nunavut’s Travel Restriction Order #9 [ 22 ] The Defence says Mr. Rancourt is unable to come to Nunavut due to the existing travel restrictions. This is what the Nunavut travel order says, in part: 15.

Pursuant to subsection 41(1)(

e) of the Act, all travel to Nunavut that originated from across any inter-jurisdictional border other than the boundary between Nunavut and the Northwest Territories or between Nunavut and the municipal boundaries of the Town of Churchill, Manitoba is hereby prohibited with the following exceptions: h. Persons engaged in providing critical services; [ 23 ] As of 7 January 2021, individuals filed 10,757 critical service requests of which 7,231 – or 67.2% - were approved. 294 requests – 2.7% were denied. [11] [ 24 ] Mr.

Rancourt has not investigated whether he qualifies for an exemption by reason of providing a critical service. Nor has he made any inquiries into what facilities or accommodations would be available to him during an isolation stay that would alleviate his health concerns. It was incumbent in the circumstances of this 2017 case at a very minimum for Mr. Rancourt to make inquiries respecting a possible exemption. [ 25 ] I am not satisfied on the evidence before me that Mr.

Rancourt would not be able to secure a critical service exemption or suitable living arrangements either in an isolation hub or in Iqaluit in April. This factor weighs against granting the adjournment request. B. The Nunavut Court of Justice and remote trial technology [ 26 ] Putting aside the critical service exemption issue and the isolation hub possibility, the Nunavut Court of Justice has been at the forefront in Canada in using modern technologies to deliver justice to Nunavummiut in our far flung and isolated communities. The Court routinely facilitates telephone and videoconferencing appearances.

Since the onslaught of the pandemic, this Court has held not only a dangerous offender application by videoconference, but as recently as last week, I presided over a second-degree murder preliminary inquiry via videoconference as well. The preliminary inquiry featured, among other things, remote appearances by Crown Counsel and witnesses by videoconference, direct and cross examination of witnesses, and submissions by remote counsel. The process worked extremely well.

[ 27 ] The Nunavut Court of Justice has the technological ability to permit Mr. Rancourt to participate remotely in Mr. Hodgson’s trial. Mr. Rancourt can be visible to the Court by videoconference, and the Court can be visible to Mr. Rancourt. Most importantly, I have been assured by our IT staff that the witnesses and the jury will both be visible to Mr. Rancourt. Mr. Rancourt can communicate via text messaging with Ms. Siebert during the trial, and the Court is prepared to accommodate recesses to permit Mr. Rancourt and Ms.

Siebert to speak to each other when necessary. [ 28 ] In my view, this scenario demonstrates that the current travel restrictions—in the event Mr. Rancourt is denied or does not seek a critical service exemption—do not make Mr. Rancourt unavailable to represent Mr. Hodgson at his trial. [ 29 ] I do not agree with Mr. Rancourt’s assertion that he must be physically present with Mr. Hodgson throughout the trial. Ms. Siebert is an experienced lawyer and she will be sitting directly beside Mr. Hodgson throughout the trial. Ms. Siebert shall have leave of the Court to maintain constant communications with Mr.

Rancourt throughout the proceedings. Defence Counsel will have the Court’s leave to request recesses so Ms. Siebert and Mr. Rancourt may confer. This scenario does not deprive Mr. Hodgson of his counsel of choice, nor does it interfere with his constitutionally protected right to mount full answer and defence to the charge. [ 30 ] The case against Mr. Hodgson is not at all complex and is straightforward. Both Mr. Rancourt and Ms. Siebert are experienced lawyers who were present at the preliminary inquiry.

They do not need to be sitting beside each other in the courtroom to mount full answer and defence. [ 31 ] This reality – and the acceptance of the role of twenty-first century technology in our courtrooms – weighs against granting the adjournment application. VII.

CONCLUSION [ 32 ] In considering the challenges and the questions posed by this application, I find guidance from the Supreme Court of Canada in the seminal case of R v Jordan . [12] [ 33 ] In 2016 in Jordan , the Supreme Court of Canada stated that a 30-month delay in holding an indictable (murder) trial is presumptively unreasonable. [13] There have already been two adjournments in this case; one at the request of Defence Counsel in November 2019, and one due to the Court closure in March 2020 due to the pandemic.

I repeat at the time of writing, this case has been before the Court for three years and 10 months – 16 months beyond the presumptive limit. [ 34 ] A year after Jordan , the Supreme Court of Canada in R v Cody reiterated the Jordan message in plain and unequivocal terms: In R v Jordan … this court identified a culture of complacency towards delay in the criminal justice system. This culture was fostered by doctrinal and practical difficulties plaguing the analytical framework then applicable of the right of accused persons, guaranteed under s. 11(

b) of the Canadian Charter of Rights and Freedoms to be tried within a reasonable time. This appeal is yet another example of why change is necessary. From the time the appellant James Cody was charged … until his five day trial (sic) was scheduled to begin (prior to the release of this court’s decision in Jordan ), fully five years passed (sic). As we will explain the Crown, the defence and the system each contributed to that delay.

This leads us to stress, as the court did in Jordan , that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused’s person’s right to a trial within a reasonable time. [14] [ 35 ] No one could have predicted the current global pandemic nor its continuing virulence. But that fact does not absolve justice participants from making the necessary practical adjustments to the new reality.

The challenge posed by this application to the Court— how to balance and reconcile this Court’s Jordan / Cody mandated responsibilities with the pandemic—is fundamentally important to maintain public confidence in our justice system. [ 36 ] By the time jury selection starts on April 19, almost four years—47 months—will have gone by since the incident; a 47-month delay does nothing to enhance or sharpen the memory of witnesses.

[ 37 ] Forty-seven months is a very long time, arguably far too long, for family members and prospective witnesses to wait for the criminal justice system to deliver the trial. A November trial date would be 54 months after the incident – a full two years beyond the Jordan presumptive limit. [ 38 ] I acknowledge that Mr. Hodgson through counsel is willing to waive his

section 11(

b) Charter right to a trial within a reasonable time. However, that concession does not assist me in addressing the larger systemic issues or to balance the competing considerations raised by his application. [ 39 ] There is every real possibility that we shall still be facing pandemic related travel restrictions in the autumn. Simply delaying the trial nine months into the future in these circumstances would in my view be unreasonable, unrealistic, manifestly unfair to the family of the deceased and to the participants and their families, and decidedly against the public interest. VIII.

DECISION [ 40 ] Nunavut’s justice system must adapt to the new realities posed by the ongoing global pandemic. Nunavut’s justice system must be flexible and open to implementing the possibilities afforded by remote technology. Nunavummiut no less than any other Canadians expect their courts to evolve with the times. [ 41 ] In my view and for the reasons I have expressed, the Defence adjournment application consented to by the Crown must, by necessity, fail. I dismiss the adjournment application. [ 42 ] Stand up, please, Mr. Hodgson.

Jury selection in your second-degree murder trial will commence at 9:30am on Monday, April 19, 2021. You will return to Court at that time. In the meantime, all your bail conditions continue. Dated at the City of Iqaluit this 19th day of February, 2021 ___________________ Justice P. Bychok Nunavut Court of Justice