In the matter of Baasch and Kerstans, 2022 NUCJ 47

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: In the matter of Baasch and Kerstans, 2022 NUCJ 47 Date: 20221214 Docket: 08-21-397 Registry: Iqaluit IN THE MATTERS OF Corporal Andrew Kerstens of the Royal Canadian Mounted Police and Emma Baasch, Crown Counsel with the Public Prosecution Service of Canada, being persons against whom contempt of court proceedings have been commenced.

AND IN THE MATTER OF Crown: His Majesty the King -and- Accused: Robert Joseph Campbell, Ayapau Noah, Andy Onalik (Kopalie) __________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Baasch): Counsel (Kerstans): R. Frater, KC R. Beeman Location Heard: Date Heard: Iqaluit, Nunavut July 13, 2022; August 8, 2022; December 14, 2022 Matters: Show cause hearing for criminal contempt REASONS FOR DECISION (Delivered Orally) (NOTE: This document may have been edited for publication) I.

INTRODUCTION [ 1 ] On July 13, 2022, Robert Campbell was required by the conditions of his court-imposed bail to present himself in Court at 9:30 a.m. for his long-scheduled trial. Mr. Campbell was not present when the Court called the matter, so the Court stood it down until his arrival. Mr. Campbell arrived late, but no one advised the Court. Before the Court could continue to address the matter, Cpl. Andrew Kerstens, after consultation with Crown Prosecutor Emma Baasch, entered this courtroom to arrest Robert Campbell. After permitting Mr. Campbell to speak to his lawyer, Cpl. Kerstens arrested Mr.

Campbell just outside the courtroom and removed him from the

building. The arrest was a direct interference with the ability of the Court to continue to deal with the matter which was actively before it, and it frustrated the Court in its ability to deal with the matter in a timely fashion. [ 2 ] I provided Ms. Baasch and Cpl. Kerstens with the opportunity to show cause why they should not be held in contempt of court. The Court conducted the show cause hearing on July 13, August 2 and this morning. These are my reasons for decision. II.

FACTS [ 3 ] I will first outline the relevant facts as they appear on the record. [ 4 ] On July 13, this Court was prepared to deal with the scheduled half-day trial in the case of Her Majesty The Queen versus Robert Campbell, Ayapau Noah, and Andy Onalik . Each of the three co-accused were represented by counsel who were present in Court at 9:30 that morning. Emma Baasch was Prosecuting Counsel. When the Court called the matter, two of the co-accused, Mr. Campbell and Mr. Noah, were not present. I stood down Court to await their anticipated arrival.

In the normal course of things, counsel notify the Court promptly when the Court is waiting for the arrival of a late accused or witness. [ 5 ] When I returned to the court room later on my own initiative to ascertain what was happening with the file, Ms. Baasch requested an adjournment. Among other things, Ms. Baasch stated simply in passing that “Mr. Campbell is now in custody but was not in custody on these matters previously.” [1] Ms. Baasch provided no further information to the Court concerning Mr. Campbell’s circumstances. It was only when I asked Mr. Campbell’s lawyer why Mr.

Campbell was in custody that she told me that Mr. Campbell had been arrested and removed by the police from the courthouse that very morning. [ 6 ] I immediately summoned the Senior Court Clerk and directed her to call the police to advise them that I was ordering them to return Mr. Campbell immediately to the Court. Although the police detachment is only a few minutes drive from the courthouse, the police did not return Mr. Campbell until more than an hour later. Cpl. Kerstens was the arresting officer, and it was he who returned Mr.

Campbell to Court. [ 7 ] In answer to my questions just before the lunch break, Cpl. Kerstens admitted that he knew that Mr. Campbell was required by a condition of his bail order to attend Court for his trial that morning. Cpl. Kerstens stated that he “wouldn’t necessarily call” [the situation leading to Mr. Campbell’s arrest] to have been exigent at the time. [2] Cpl. Kerstens also said: “at that point in time, I thought it was in the public interest” to arrest Mr. Campbell.” [3] I note that Ms. Baasch was present in Court during my exchange with Cpl.

Kerstens but she did not volunteer any information to the Court concerning how and why Mr. Campbell was arrested. [ 8 ] I adjourned the matter until 1:30 p.m. to give Cpl. Kerstens an opportunity to collect his thoughts and to explain to the Court why he should not be held in contempt. That afternoon, Cpl. Kerstens requested the chance to speak to a lawyer, so the Court adjourned his show cause hearing until August 2. [ 9 ] I was prepared to deal with the matter on August 2 however for the first time, Cpl. Kersten’s counsel told me that Ms. Baasch had at least discussed with Cpl. Kerstens the arrest of Mr.

Campbell on July 13. Specifically, Cpl. Kerstens told me through counsel that due to developments which became known on July 13, “it was mutually agreed and understood that Mr. Campbell should be charged with at least one criminal offence.” [4] Furthermore, counsel stated that “It was discussed and it was understood between the Crown and Cpl. Kerstens that Mr. Campbell would be arrested … as he [indiscernible] entered the court.” [5] [ 10 ] Having been provided information for the first time that Ms. Baasch had played an active role in Mr. Campbell’s arrest, it was imperative that the Court hear from her.

Philippe Plourde, Ms. Baasch’s supervisor, was present on August 2. Mr. Plourde told me that Ms. Baasch was away on holiday and unavailable to address the Court. I informed Mr. Plourde that I would convene a show cause hearing to give her an opportunity to show cause why she should not be held in contempt. I ordered the matter to return to Assignment Court to set a continuation date for the show cause hearing.

[ 11 ] On December 6, counsel for Ms. Baasch filed an affidavit sworn by her. In the affidavit, Ms. Baasch said she formed the opinion on July 13 that the police should charge Mr. Campbell with a fresh criminal offence and, importantly, “…in my opinion Mr. Campbell should be arrested and held for a show cause hearing. I asked Cpl. Kerstens to do this at Court if Mr. Campbell attended.” [6] [ 12 ] After a number of adjournments made at the request of counsel, the Court continued the show cause hearing this morning. III.

THE LAW – CONTEMPT OF COURT [ 13 ] Contempt of court is an offence at common law and may be either civil or criminal in nature. [7] The present hearing involves the actions of state actors in arresting a person whose matter was actively before the Court and which prevented the Court from continuing to deal with the case. Therefore, this Court is dealing with a citation for criminal contempt. [ 14 ] There are two essential elements to criminal contempt; the mens rea or mental element, and the actus reus or physical element.

Each element must have been present at the time when the persons performed the impugned acts. [ 15 ] I cannot find Ms. Baasch or Cpl. Kerstens guilty of contempt of court unless I am satisfied beyond a reasonable doubt [8] that: 1. He or she publicly defied or disobeyed a court order (the actus reus ); 2. With intent, knowledge, or recklessness as to the fact that the public disobedience would tend to deprecate the authority of the Court (the mens rea ). [9] [ 16 ] The Canadian Judicial Council has articulated the principles which underlie the contempt powers available to His Majesty’s judiciary. 1.

Contempt of court is the mechanism which the law provides for the protection of the authority of the court from improper interference. 2. Contempt pf court powers do not exist for the personal dignity, honour, or reputation of the judges, only for courts and judges as judges. 3. Contempt of court is part of a court’s inherent jurisdiction and, as it is not precisely prescribed or enacted, should be exercised with scrupulous care and only when the circumstances are clear and beyond reasonable doubt. [10] [ 17 ] Further, contempt of court may be committed in the face of the court or outside of court.

In this case, the impugned acts happened both in the courtroom and just outside the courtroom doors. IV. ISSUE [ 18 ] For the reasons I am about to explain, it is my view that Ms. Baasch and Cpl. Kerstens interfered improperly with the Court’s ability to continue to deal with Mr. Campbell’s case, and in the process, openly and publicly violated the integrity of the Nunavut Court of Justice. The issue I must decide is whether they are singularly or jointly guilty of criminal contempt of court.

V. ANALYSIS A. The Constitutional separation of powers and the integrity of the Court [ 19 ]

Section 1 of the Charter of Rights and Freedoms ( Charter ) states that Canada is “a free and democratic society.” [11] That description of Canada as free and democratic can be looked at from a number of different perspectives. The one that merits scrutiny today is one aspect of how that reality plays out in the relationship between the executive arm of the state and the courts. [ 20 ] The Charter states in its

preamble that this country is based upon the principle of the rule of law. In this country, one of the fundamental pillars of the rule of law and our justice system is an independent judiciary. In fact, Canadians would have no enforceable rights at all without an independent judiciary. His Majesty’s courts are a Canadian’s last line of defence of their fundamental rights and freedoms as they are enshrined in the Charter . [ 21 ] Our Constitution grants extraordinary, and necessary, powers to the police and prosecution so that Canadians might live in a safe and peaceful society.

Along with those powers, police and prosecutors are granted considerable discretion how to exercise them. The proper exercise of that discretion involves a consideration and an understanding of the extent of, and the limits placed upon, the authority delegated to the police and prosecutors by the Constitution. [ 22 ] I am stating the obvious, but it bears repeating and emphasising that this building is a courthouse. Courthouses hold a unique place in our society; courthouses are where Canadians go to seek legal and peaceful redress. Courtrooms are also, perhaps, the most open of all our public institutions.

What happens in our courthouses matters profoundly and resonates throughout our communities. In our free and democratic society, courthouses are safe places where an independent judiciary acts as a last line of defence against abuse by state actors of their lawful delegated authority [ 23 ] In this context there is an old and fundamental principle: justice must not only be done, but justice must also be seen to be done.

If our courts are to maintain the respect and support of the communities we serve, judges must defend the courts and the administration of justice from all assault and infringement of their authority. Judges must ensure that judicial independence – the sine qua non of a free and democratic society - is not only recognised and respected but seen to be recognised and respected.

Therefore, state actors must be ever alert and scrupulous to avoid the slightest appearance that they may be interfering with the independence of the courts. [ 24 ] There may indeed be the rare occasion, be it due to emergency or upon a request for assistance by the Court, that the police may properly enter a courtroom to restore order, or to effect an appropriate arrest. Fortunately, these circumstances are very few, and far between.

Short of emergency or a Court request for assistance, the police – who we remind ourselves are armed agents of the state security apparatus – have no business, no place, and no role to assert any purported authority in a courtroom. Any and all such purported exercise of police and prosecutorial authority by definition constitutes an improper interference with the operation of the Court. As such, any such action also constitutes an affront and violation of the integrity of the Court. [ 25 ] Neither of the situations I just mentioned was present on July 13. Mr.

Campbell was lawfully in this courtroom, and he was subject to a Court-imposed bail condition that he be here. The case had been called by the Court and was still actively before it. There were no exigent circumstances which required the Crown to take matters into their own hands. It is a criminal contempt in Canadian law to prevent an accused, complainant, or witness from participating in a judicial proceeding. [12] [ 26 ] On July 13, Ms. Baasch and Cpl. Kerstens – who each knew that Mr.

Campbell was required by the Court to be present for his trial, and that the Court was actively seized with it - nevertheless removed him the jurisdiction of the Court. In the process, they not only frustrated Mr. Campbell’s right to be present at his trial, but they also denied the Court the ability to continue to deal with the case. Their joint action in arresting Mr. Campbell and removing him from the courthouse constituted clear interference with the Court and its process and was an arbitrary violation of the Court’s authority.

It was a direct and public insult to the integrity of the Nunavut Court of Justice.

VI. DECISION A. The actus reus of criminal contempt [ 27 ] Ms. Baasch, Cpl. Kerstens, your joint actions in this courtroom and courthouse on July 13 violated not only Mr. Campbell’s right to be present at his trial, but it was also a flagrant and public interference with, and violation of, the Court’s active jurisdiction over him. The public nature of what you did is attested to by the public interest which this matter has attracted. I am satisfied beyond a reasonable doubt that you both committed the actus reus or physical element of criminal contempt. B.

The mens rea of criminal contempt [ 28 ] I turn now to the mens rea or mental element of the offence. I accept that neither of you intended to bring public disdain upon the Court by your actions here on July 13. That said, I am satisfied beyond a reasonable doubt that each of you gave no more thought or reflection to your actions, their implication , and ramifications, than you would have had you considered having Mr. Campbell arrested in NorthMart or inside the Legion.

In and of itself that might have provided proof of recklessness but for the fact that you discussed the situation and your actions first with each other. The situation ought to have alerted you to the need for you to pause and to reflect on the import of your actions, or to seek the advice of someone more senior. Your actions were indeed reckless, and they reveal a stunning lack of judgment; but not to the extent required to convict you of criminal contempt. [ 29 ] I must find each of you not guilty, and I do. VII.

THE ETHICAL OBLIGATION OF A BARRISTER AS AN OFFICER OF THE COURT [ 30 ] That does not end the matter, however. I turn now to the ethical obligations of a barrister as an officer of the Court. [ 31 ] Not only do barristers have an ethical duty of complete candour to the Court; they also occupy a privileged position. Alone among those who address the Court on the record, barristers are not asked to affirm or swear that what they speak is the truth. A barrister’s word is presumed to be candid and truthful. The trust extended by the Court to barristers facilitates the efficient use of scarce judicial resources.

That ethical duty of complete candour also includes the initiative-taking duty to bring relevant information to the attention Court when required. That situation presented itself to Ms. Baasch on July 13. [ 32 ] I now review the relevant events of July 13 focusing, Ms. Baasch, on your actions: • The Court had called Mr. Campbell’s matter and his matter was actively before it. Having formed the opinion that Mr. Campbell you had an ethical obligation to inform the Court on the record that circumstances had arisen which might justify an arrest and an adjournment. However, you failed to do so. • Following Mr.

Campbell’s arrest and removal, you did not advise the Court promptly that the Crown had orchestrated those events. You were ethically obliged as a barrister and officer of the Court to do so; • When the Court reconvened 40 minutes later on its own motion, you again did not provide a candid and full accounting and explanation for your actions. You were ethically obliged as a barrister and officer of the Court to do so; • Later still, when the Court questioned Cpl. Kerstens at length concerning the circumstances surrounding the arrest and removal, you

remained silent. You again did not offer to the Court a candid and full accounting for your actions. You were ethically obliged as a barrister and officer of the Court to do so. [ 33 ] Ms. Baasch, I am disappointed that nowhere in your affidavit or in your lawyer’s pleadings do you recognize that you failed in your ethical duties to the Court. I hope you will take to heart what I have explained to you this morning. [ 34 ] Madam Clerk, please close Court. Dated at the City of Iqaluit this 14th day of December 2022 ___________________ Justice P. Bychok Nunavut Court of Justice