R. v. Nuqingaq, 2018 NUCJ 30

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Nuqingaq, 2018 NUCJ 30 Date: 20181002 Docket: 08-18-14 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Mason Nuqingaq ________________________________________________________________________ Before: The Honourable Mr. Justice Earl Johnson Counsel (Crown/Respondent): Philippe Plourde Counsel (Accused/Applicant): Lana Walker Location Heard: Iqaluit, Nunavut Date Heard: October 1, 2018 Matters: Application to adjourn the preliminary inquiry pending Crown disclosure of sexual assault evidence kit results.

Application granted. REASONS FOR JUDGMENT (Delivered Orally) (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] The accused applied for an adjournment of a preliminary inquiry scheduled to take place on Wednesday, October 3, 2018, in Iqaluit. The request is opposed by the Crown.

I heard argument on Monday, October 1, 2018, and reserved until today, October 2, 2018, to consider the arguments and read the case law relied on by both Counsel. [ 2 ] On December 17, 2017, the complainant attended the Qikiqtani Regional Hospital and reported she had been sexually assaulted. A sexual assault evidence kit [SAEK] was administered and turned over to the Royal Canadian Mounted Police [RCMP].

[3] The accused was charged with sexually assaulting the complainant on December 27, 2017. He appeared in court on January 9,2018, and was released on bail. His case was adjourned to January 22, 2018. The accused did not appear in court until July 2018 afterbeing picked up on a warrant for failing to appear in January.

On July 20, 2018, the accused elected to be tried by judge and jury with apreliminary inquiry. [4] On August 13, 2018, the accused’s preliminary inquiry was scheduled for October 3. [5] Counsel for the accused made a request from the Crown for the results of the SAEK and supporting documentation on January 8,2018. Despite subsequent requests made on August 12 and August 17, 2018, the RCMP have not provided the Crown with the SAEKinformation. On August 17, the RCMP informed the Crown that the lead officer on the file had been transferred to the south.

OnSeptember 13, the RCMP informed the Crown that the officer who replaced the first officer had also been transferred to the south. A fewdays ago, the current officer on the file informed the Crown that the SAEK had not been forwarded for testing. II. DEFENCE SUBMISSIONS [6] Defence Counsel submits that she is not comfortable proceeding with the preliminary without the SAEK disclosure. This is not acase where she would be asking for another adjournment to get the DNA results back.

She is asking for the disclosure of the SAEK,which will contain a version of the events, what items were seized, and preliminary results from a lab confirming whether semen waspresent on the complainant. This information is part of the Crown’s case and is very important relevant disclosure in this case. She wouldfeel irresponsible in proceeding with the preliminary without this information. [7] Defence counsel relies on paragraphs 16 and 17 of R v Mattingly, 1994 CarswellOnt 62, [1994] OJ No 694 [Mattingly].

Atparagraph 16, the trial judge referred to R v Marriot (1993), (PE SCAD), 79 CCC (3d) 346, which was a judgmentof the Prince Edward Island Court of Appeal. The trial judge denied a stay of proceedings for where hospital records and potentialwitnesses were missing for a trial because they would not be determinative of the issues. The Court of Appeal held that the trial judgehad applied the wrong standard.

The focus should have been on the fairness of the trial and whether the appellant’s ability to mount afull answer and defence to the charge was effected. [8] At Mattingly para 17, the trial judge referred to R v J (L), no citations given. In that case there was a pre-trial application for a stayof proceedings in a sexual assault trial because of the destruction of a sexual assault kit. The application was granted because thedestroyed evidence was capable of confirming or contradicting portions of the complainant’s evidence. III.

CROWN SUBMISSIONS [9] The Crown wanted to clarify that the complainant did not go to the hospital and then make a complaint to the police 10 or 11 dayslater. One hour and 45 minutes after she was at the hospital, the police took a statement from her.

The hospital had called the police toobtain a sexual assault kit and the police went to the hospital and took a statement as set out in Constable Robby Burke’s general report.So this is not a case where there is a disclosure one day and another one 10 or 11 days later. [10] The Crown acknowledges that having the SAEK would be the best case scenario but points out that at this time the Crown doesnot have the waiver required from the complainant to produce the SAEK to the Defence. The Crown also agrees that the SAEK wouldbe relevant evidence for the purposes of a trial.

However, the accused is not yet on trial and seeks it for the purpose of a preliminaryinquiry. [11] The SAEK is not absolutely required for the purposes of the Crown satisfying the burden of proof at a preliminary inquiry as notedat p. 6 of unreported case of Whitty v Attorney General of Nova Scotia, Supreme Court of Nova Scotia, delivered November 22, 1996. [12] The same types of comments were made by Shaner J. at para 28 of L(PJ) v R, 2017 NWTSC 48 [L(PJ)]. She distinguished theright to disclosure and the purpose of a preliminary inquiry.

The purpose of the preliminary inquiry is simply to determine if there isenough evidence to commit an accused to stand trial. It may serve the secondary purpose of affording the defence an opportunity to testthe Crown’s evidence and provide a form of discovery but it operates independently for the right of disclosure.

[13] The Crown submits that these comments support the conclusion that the preliminary inquiry is not a fishing expedition as it used tobe in the pre-disclosure years before R v Stinchecombe, (SCC), [1991] 3 SCR 326. It is not through the preliminary thatthe defence will understand and get to know the evidence. If the court applies this distinction there is no breach of the accused’sfundamental right to a fair trial particularly in this case where the Crown is not running a paper preliminary.

The complainant will giveevidence as well as another witness requested by the defence. [14] At para 30 of L(PJ), Shaner J. noted that given the respective purposes of preliminary inquiries and the right to disclosure,requiring the accused to either proceed with or waive the preliminary inquiry without the results of the second DNA analysis would notresult in a breach of fundamental justice. The absence of the DNA would not prevent the cross-examination of witnesses and Counsel’sobservations and experiences and making submissions on whether there was sufficient evidence to warrant a trial.

Contradictions in thenurses notes is a potential credibility assessment issue for trial not for the preliminary. If there are any discrepancies in any description ofevents once again that is a credibility issue for trial. Whether there is a DNA match or not is a matter for trial. [15] As noted by the Alberta Court of Appeal at para 13 of R v CD, 2014 ABCA 392: The accused complains of delay in starting the preliminary hearing while waiting for DNA lab results. But such DNA evidence was notnecessary to hold a preliminary hearing, and the Crown did not seek such lab results before starting it.

The defence insisted on havingthose lab results about the complainant and the accused before starting the preliminary hearing. So the Crown did not create the need forsuch a pause. [16] The Crown will not be relying on DNA results at the preliminary and are not calling the nurse or the officers who were at thehospital carrying out the SAEK.

The Crown’s case will be established by the evidence of the complainant and any cross-examination bythe defence. [17] The Crown relies on the comments of Shaner J. at para 25 that the courts must do their part to minimize unnecessary delay even inthe face of a reasonable application and the best intentions of counsel where the judge determines that the adjournment will not serve theoverall interests of justice. [18] In this post R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan], era, the Court must be part of the proactive process that ensuresthere are minimal delays in a criminal prosecution.

The file is almost a year old and it could be 90 to 120 days before the results areavailable. While it would be ideal to have the results they are not necessary for the preliminary to proceed. The complainant is in Iqaluitand ready to testify and the Crown is ready to proceed. IV. DEFENCE REPLY SUBMISSIONS [19] In reply, Defence Counsel noted the DNA evidence in L(PJ) was secondary evidence. She was also very concerned that thecomplainant had not yet given the required waiver.

She believes that her ability to mount a defence and build a focused cross-examination would be compromised if she walks into court intent on possibly setting up a third party records application at trial. There isa whole line of case law that discusses the types of questions that can be asked of a complainant when you are setting up a third partyrecords application. If she does not have the SAEK before the preliminary, then she will have to engage in a fishing expedition when shedoes the preliminary.

The SAEK will focus the cross-examination and the preliminary on the issues that are actually relevant. [20] Defence Counsel also noted that that there was a big gap in the timeline of this case. Her client made an appearance in January andthen failed to appear so the court system is not a fault for the delay. The accused was brought back to court in July and the preliminarydate was set on August 13 or about 6 weeks ago. As a result, the Court is not considering long previous adjournments.

The accused didnot wait for very long for the preliminary date and perhaps a later date should have been set so that more time was allowed fordisclosure. V. ANALYSIS

[ 21 ] Defence Counsel’s submission that for purposes of a Jordan application the period from January to July would not be attributed to Court or Crown delay is a valid one. That period would not count because it was the result of the accused’s conduct. From this perspective the file really starts in July and the date set for the preliminary was with the benefit of hindsight set a little prematurely.

Counsel were optimistic about the SAEK results being available and had no ability to see the problems with the RCMP management of the file. [ 22 ] The complainant has not yet given a waiver for the release of the results and Defence Counsel anticipates a possible Criminal Code , RSC 1985, c C-46, s. 276 application. Her cross-examination would be focused with this in mind and she has legitimate concerns about proceeding in the absence of the SAEK. [ 23 ] Allowing 90 to 120 days for the SAEK results would still keep the case within Jordan timelines.

Assuming a committal, the trial should take place sometime in 2019 which would be within the Jordan parameters. [ 24 ] I appreciate the Crown’s point about the distinction between a disclosure issue and a preliminary hearing and that Mattingly dealt with a trial issue. [ 25 ] In L(PJ), the Crown’s initial DNA evidence had been received and disclosed. The Crown then indicated that it planned to obtain another analysis using the applicant’s DNA. The purpose was to determine if his was a match to that which was recovered initially. Defence Counsel wanted to have that information before the preliminary inquiry.

In this case, there are no DNA results and Defence Counsel is in a less advantageous position than Defence Counsel in L(PJ) . As noted at para 18 of L(PJ) , a judge’s decision to adjourn a preliminary is entirely discretionary. [ 26 ] Taking all these considerations into account, I will grant the Defence Counsel motion to adjourn the preliminary inquiry. Dated at the City of Iqaluit this 2nd day of October, 2018 ___________________ Justice E. Johnson Nunavut Court of Justice