R v Komoartok, 2020 NUCA 12

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Komoartok, 2020 NUCA 12 Date: 20201021 Docket: 10-19-36; 10-19-40 Registry: Iqaluit Between: Her Majesty the Queen Respondent - and - Timothy Komoartok Respondent - and - Ingrid Grant Applicant _______________________________________________________

Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ Application for Certiorari _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ I. Introduction [ 1 ] The following written reasons are a promised elaboration of oral reasons which were stated by me in deciding an application for relief as against a ruling dated July 30, 2020, of a judge of the Nunavut Court of Justice.

His ruling and my decision arose in relation to the prosecution of Timothy Komoartok, on Court File Numbers 10-19-36 and 10-19-40. [ 2 ] While these reasons expand on what was said orally by me at the end of the audio-conference in which the application was dealt with, they do not venture beyond the topical borders of what was said. [ 3 ] The proceedings on the motion were conducted by audio-conference as that was all that was feasible during the prevailing pandemic emergency.

That said, and notably in light of the jurisdiction of courts to control their own processes as discussed in these reasons, it is not necessary for me to embroider these reasons with a final determination whether (

a) a putative application for certiorari related to an indictable criminal trial in progress constitutes a criminal “proceeding” within the meaning of s 774 of the Criminal Code and (

b) whether s 715.26 of the Criminal Code – which authorizes an audio-conference for a “proceeding” under the Code – applies to the situation. [ 4 ] No party objected to proceeding by audio-conference, the proceedings were recorded in Nunavut, and some participants and audience members were physically in Nunavut. There was no apparent prejudice to anyone or to the administration of justice in how this went in that technical sense. II. Context [ 5 ] As I stated at the commencement of my oral reasons, there were “several different parties” to the specific proceeding then before me.

The parties included, of course, the Crown, and Mr. Komoartok. The foundation of the matter before me, however, was an application brought by Ms Maija Martin, Barrister and Solicitor, on behalf of Ms Ingrid Grant, Barrister and Solicitor. Ms Grant was counsel of record for Mr Komoartok on July 30, 2020 when the case had appeared before the Nunavut Court of Justice and when the ruling was made. [ 6 ] In sum, on that date, Ms Grant sought leave to withdraw as counsel for Mr Komoartok in relation to that prosecution.

The presiding judge, Justice Bychok, refused to adjourn the trial and pointedly refused to permit Ms Grant leave to withdraw as counsel: see R v Komoartok , 2020 NUCJ 29 , at paras 18-49 , and notably at paras 39-47. [ 7 ] While Justice Bychok did not directly order Ms Grant to attend “the next Pangnirtung Circuit” in Nunavut (which was coming up quite soon) so as to expressly force Ms Grant to appear and to continue to represent Mr Komoartok, Ms Grant, in my view, recognized her ethical duties in that regard.

The fact that she applied for relief under law to me reflected her awareness of the ethical position in which she stood and her respect for the rule of law. Later in my oral reasons (and in these written reasons) the criticism given by Justice Bychok towards the conduct of both Ms Grant and of the Legal Services Board is discussed. [ 8 ] It was, and remains, unnecessary for me to discuss in legal detail the reasons offered for withdrawal by Ms Grant and, for that matter, to discuss in legal detail the reasons given by Justice Bychok. The sufficiency of either of those reasons as against the

principles in R v Cunningham , 2010 SCC 10 , [2010] 1 SCR 331 had become a moot point at the time of the hearing of the application. [ 9 ] That mootness arose from the fact that a new designation of counsel form pursuant to

section 650.01 of the Criminal Code was executed by Mr Komoartok and by his new designated counsel, Ms Mia Manocchio of Maliganik Tukisiniarvik Legal Counsel. Ms Manocchio also attended the teleconference and confirmed that she would step in without a need of an adjournment of the case. [ 10 ] Despite the mootness of the matter, it seemed to me to be both appropriate and necessary for me to give reasons on the questions of jurisdiction that arose for debate.

Adjudication on moot questions is confined by rules of judicial prudence: compare R v Penunsi , 2019 SCC 39 at paras 10-11 , 378 CCC (3d) 37; see also see Robinson v Western Australian Museum (1977), 138 CLR 283 at 327, [1977] HCA 46 ; Kuczborski v Queensland , [2014] HCA 46; Director-General Department of Home Affairs v Mukhamadiva , [2013] ZACC 47; United States v Windsor , 570 US (2013).

Nonetheless, in this instance, I concluded that it was in the interests of justice that I offer my opinion on jurisdiction in order (hopefully) to assist both the local authorities, judicial and otherwise, and also to assist the local and visiting counsel to navigate the unique legal and judicial scheme devised by Parliament for Nunavut. [ 11 ] In this respect, the needs of justice allowing me to step past mootness were shown in part by the considerable aperture between the position argued on the application of Ms Grant (as presented by Ms Martin) and the significantly different position as suggested by Crown counsel during the proceedings.

Both positions sought reversal of the ruling of the presiding judge. But the jurisdictional and practical visions were quite different as between them. [ 12 ] Moreover, the remedy sought by Ms Grant had the implicit endorsement of Ms Manocchio and thereby of Mr Komoartok. There was no dispute of the content of Ms Grant’s affidavit. The remedy sought by Ms Grant was also supported by an extensive affidavit of Mr Benson Cowan, the Chief Executive Officer of the Legal Services Board of Nunavut (associated with information from Stephanie Boydell, the Chief Legal Officer of the Board).

Mr Cowan also addressed further considerations which he felt were raised by the reasoning of Justice Bychok. There was, in addition, an affidavit of John Strothers, the President of the Criminal Lawyers Association of Ontario providing comparative context from that province. [ 13 ] All of these perspectives touched directly or indirectly on the questions of jurisdiction in ways which, in my view, drove the need for me to propose a legal clarification by way of these written reasons as to those questions of jurisdiction.

Another factor was that, in a sense, the opinion of Justice Bychok as to his jurisdiction ended up in a sort of “splendid isolation” inasmuch as his opinion was not represented except by his reasoning.

But let’s face it: judges have to get used to being in that situation. [ 14 ] The starting point of the discussion of jurisdiction was encapsulated by Ms Martin in her “Notice of Application for Certiorari” which she described as: an application to a single judge of the Nunavut Court of Appeal for the extraordinary remedy of certiorari , setting aside the decision of Justice Bychok on July 30, 2020, refusing to remove her as solicitor of record for Mr.

Komartok. [ 15 ] In opening my oral reasons, I also mentioned that, in the run up to the hearing of the application, I had asked the Executive Legal Officer of the Court to raise with counsel my concern as to whether or not an application for certiorari was, in fact, available as against a judge at the Nunavut Court of Justice operating as an indictable criminal trial court in connection with the indictable proceedings then prevailing against Mr. Komoartok. As noted above, counsel for Ms Grant argued for such certiorari jurisdiction, and Crown counsel proposed an alternative form of jurisdiction.

I turn now to those topics. III. Discussion [ 16 ] As I explained orally, the role of the Nunavut Court of Justice in connection with the conduct of trials of indictable matters is governed by the relevant provisions of the Criminal Code of Canada and fundamentally, as a structural arrangement, by the terms of the Judicature Act (Nunavut) , and the definitional senses therein provided. [ 17 ] The Nunavut Court of Justice is a Court created pursuant to

Section 101 of the Constitution Act of 1867 via the Nunavut Act as amended, and thereafter also by the Nunavut Judicature Act . Those pieces of legislation enacted by Parliament and by the Nunavut territorial government chose to create that court as a “superior court”. [ 18 ]

Section 101 of the Constitution Act of 1867 reads as follows: 101. The Parliament of Canada may, notwithstanding anything in this Act, from Time to Time provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada, and for the Establishment of any additional Courts for the better Administration of the Laws of Canada. (55) 101.

Le parlement du Canada pourra, nonobstant toute disposition contraire énoncée dans la présente loi, lorsque l’occasion le requerra, adopter des mesures à l’effet de créer, maintenir et organiser une cour générale d’appel pour le Canada, et établir des tribunaux additionnels pour la meilleure administration des lois du Canada. [ 19 ] The Nunavut Act , SC 1993 c, 28 provides in s 31(1) and (1.1) as follows:

Superior courts 31

(1) The Nunavut Court of Justice andthe Court of Appeal of Nunavut areestablished as superior courts that have andmay exercise in relation to Nunavut all thepowers and jurisdiction that the SupremeCourt of the Northwest Territories and theCourt of Appeal of the NorthwestTerritories, respectively, had immediatelybefore the day that

section 3 comes intoforce. Administration of justice (1.1) Subsection (1) does not limit thepowers conferred on the Legislature byparagraph 23(1)(e). Juridictions supérieures 31

(1) La Cour de justice du Nunavutet la Cour d’appel du Nunavut sont constituées en juridictions supérieures.Elles exercent, pour le Nunavut, lesattributions qu’exerçaientrespectivement, à la date d’entrée envigueur de l’article 3, la Cour suprêmedes Territoires du Nord-Ouest et laCour d’appel des Territoires du Nord-Ouest. Précision

(1.1) Le paragraphe (1) n’a pas poureffet de restreindre de quelque façonque ce soit les pouvoirs conférés à lalégislature par l’alinéa 23(1)e). [20] In and of itself, the text of these provisions unambiguously declares the intent of the legislators as to the classification of theNunavut Court of Justice as a superior court, even though it is a statutory court. For statutory construction purposes, the text is thestarting point and where it is “precise and unequivocal” the text plays a “dominant role in the interpretive process”: Canada TrustcoMortgage Co v Canada, 2005 SCC 54 at para 10, [2005] 2 SCR 601.

As to reading of the text, courts seek the “natural meaning whichappears when the provision is simply read through”: Canadian Pacific Air Lines Ltd v Canadian Air Line Pilots Assn, [1999] 3 SCR725/735.

Compare: Permanent Mission of India to United Nations v City of New York, 551 US 193/197 (2007): “We begin, as always,with the text of the statute.” [21] In addition, it is not irrelevant to note, although it is not a dispositive consideration, that the marginal notes in the legislationunderline the same point that the two Nunavut Courts, the Nunavut Court of Justice and the Court of Appeal of Nunavut are “superiorcourts”: see s 14 of the

Interpretation Act, RSC 1985 c. I-21; R v Wigglesworth, (SCC), [1987] 2 SCR 541 at para 19; Rv Montila, [2004] UKHL 50 at paras 31-34, [2005] 1 All ER 113; R v Summers, 2014 SCC 26 at para 43, [2014] 1 SCR 575. Suchmarginal notes were not put there by “irresponsible persons”: see In re Woking Urban District Council (Basingstoke Canal) Act 1911[1914] 1 Ch 300 at p. 322 cited in Montila. [22] Another legislative statement to be considered is contained in the Judicature Act, SNWT 1998, c 34, s 1 as amended up to2017-06-08 (SNu 2017, c 22) and 2018-06-13 (SNu 2018, c 9).

Under s 1 of that Judicature Act the Nunavut Court of Justice “means theNunavut Court of Justice, established by subsection 31(1) of the Nunavut Act; (Cour de justice du Nunavut).

Section 2 of that Actprovides: Nunavut Court of Justice 2.

(1) The Nunavut Court of Justice is a superior court of record in Nunavut and has all the jurisdiction, powers and authority of such acourt. Jurisdiction and powers of Nunavut Court of Justice

(2) For the administration of the laws for the time being in force in Nunavut, the Nunavut Court of Justice possesses, within Nunavut,any jurisdiction, powers, rights, incidents, privileges and immunities that, immediately before April 1, 1999, were vested in or capable ofbeing exercised by (

a) the Supreme Court of the Northwest Territories, as constituted under the Northwest Territories Act (Canada); and(

b) the Territorial Court of the Northwest Territories, as established by the Territorial Court Act (Northwest Territories). [23] The Supreme Court of the Northwest Territories was also a superior court. [24] The fact that the Nunavut Court of Justice being a superior court is nevertheless a statutory court creates nothing confoundingabout the implications of that moniker of “superior court”. The same characteristic can be said about the Federal Courts and about theCourt of Appeal of Nunavut of which I am a member and which role and function I was exercising when I heard this application.

Inpassing on this topic I would mention that the Court of Appeal of Nunavut is also designated a superior court under s 15 of the JudicatureAct. And a single judge of that Court, here myself, can exercise certain jurisdiction under s 20 of the Judicature Act. [25] Appellate courts are statutory courts: R v Mian, 2014 SCC 54 at para 50, [2014] 2 SCR 689.

Criminal appeal jurisdiction is amatter of procedural law covered by the jurisdiction of Parliament under s 91:27 of the Constitution Act, 1867: R v Howard Smith PaperMills Ltd, (SCC), [1957] SCR 403 per Kellock J; Kourtessis v Canada, (SCC), [1993] 2 SCR 53 atpara 4 per LaForest J; R v Meltzer, (SCC), [1989] 1 SCR 1764. [26] I need not get into and definitely do not get into the implications of to what extent the Nunavut Court of Justice as a statutorycourt is to be distinguished from a superior court under s 96 of the Constitution Act, 1867 in relation to inherent jurisdiction or immanentattributes as possessed by the latter form of superior court.

Nor do I venture an advisory opinion about the scope of what has been calledthat s 96 court’s “constant, complete and concurrent” jurisdiction: see eg R v Rahey, (SCC), [1987] 1 SCR 588 at pp603-604, para 16 citing R v Mills, (SCC), [1986] 1 SCR 863.

[27] The topics of inherent jurisdiction and immanent attributes are discussed in the influential and oft-cited

article by I.H. Jacob,in “The Inherent Jurisdiction of the Court” (1970) 23 Current Legal Problems 23 notably at pp 27-28. Nor do I get into s 99 of theConstitution Act, 1867. [28] Suffice it to say that statutory superior courts and Constitutionally founded superior courts both possess the ability to controltheir own processes: Cunningham at para 18; Ontario v Criminal Lawyers' Association of Ontario, 2013 SCC 43 at para 46, [2013] 3SCR 3; United States v Shulman, 2001 SCC 21 at para 33, [2001] 1 SCR 616 and United States v Cobb, 2001 SCC 19 at para 37, [2001]1 SCR 587.

See also R v Fercan Developments Inc, 2016 ONCA 269 at paras 50-53, 335 CCC (3d) 519.

As Baron Alderson put it (inthe style of the era) in Cocker v Tempest, (1841) 151 ER 864: The power of each Court over its own process is unlimited; it is a power incident to all Courts, inferior as well as superior; were it not so,the Court would be obliged to sit still and see its own process abused for the purpose of injustice. [29] That said, a statutory court is bound by its statutory limits and “does not have the power, by judicial fiat, to extend itsjurisdiction over matters beyond the scope of the authority granted to it by its creators”: Stoll v Gottlieb, [1938] USSC 191, 305 US171/172 (1938).

A statutory court only has jurisdiction to adjudicate where it has authority under the enabling statute over the persons in,and the subject matter of, a proceeding, and, furthermore. has the authority to make the order sought: Canada (Attorney General) vTelezone Inc, 2010 SCC 62 at para 44, [2010] 3 SCR 585; Criminal Lawyers’ Association; Nova Scotia v Doucet-Boudreau, 2003 SCC62 at paras 49-51, [2003] 3 SCR 3.

And even then, the statutory authority itself must not be ultra vires -- as might arise on a division ofpowers ground in relation to the statute itself: compare Ward v Canada, 2010 SCC 27 at para 58, [2010] 2 SCR 28.

Furthermore, good-faith-based and well-intentioned orders may still be unreasonable under the legislation: compare R v Conception, 2014 SCC 60 at para131, [2014] 3 SCR 82. [30] My decision here, however, as said at the outset, is not addressing the question of any limits of the jurisdiction of JusticeBychok to make rulings in the course of a criminal trial proceedings although Ms Grant’s motion sought this type of remedy. Parliamenthas spoken. Its will can be later interpreted as cases arise. I am addressing the anterior question of the location and timing of thereviewability of such rulings.

As noted below, Parliament has spoken there also. [31] The resort by Parliament and thereafter by the legislative authority of Nunavut to the term “superior court” is meaningfulbecause legislators are presumed to be aware of the “book” of laws within which they are enacting. It is presumed, for example, thatlegislators do not intend to change the common law (including

definitions of terms given within it) unless they do so expressly: ParrySound (District) Social Services Administration Board v.

OPSEU Local 324, 2003 SCC 42 at para 39, [2003] 2 SCR 157 citing SlaightCommunications Inc v Davidson, (SCC), [1989] 1 SCR 1038 at p. 1077; Rogers Communications Inc v VoltagePictures, LLC, 2018 SCC 38 at para 50 per Brown J (who does not disagree with the principle, just its application) and para 71 per CôtéJ, [2018] 2 SCR 643. [32] As Prof Driedger, said in his classic Construction of Statutes (2nd ed. 1983) at p. 163: “Since a statute must be considered inthe light of all circumstances existing at the time of its enactment it follows logically that words must be given the meanings they had atthe time of enactment, and the courts have so held”.

Put another way in R v W(DL), 2016 SCC 22 at para 18, [2016] 1 SCR 402: 18 … A number of principles guide statutory

interpretation in this sort of case. The three most important are these. First, whenParliament uses a legal term with a well-understood legal meaning, it is presumed that Parliament intended to incorporate that legalmeaning into the statute. Second, any departure from that legal meaning must be clear, either by express language or necessaryimplication from the statute. ..... [33] So what is it about the characteristics or status of a statutory “superior court” that would be relevant to the present questions ofjurisdiction?

As I indicated in my oral reasons, a superior court was endowed with a special form of status which, on the face of it,excluded the availability of an application for certiorari to any court that also happens to also be a superior court in character arising alsoby operation of statute in this instance. [34] As counsel for the Crown pointed out during his submissions, the role of myself as a judge of the Nunavut Court of Appealwas, in effect, a comparable status (setting to one side the different statutory remits involved and speaking only as to the office generally)to that of the judge exercising the jurisdiction in the first instance here. [35] The potential for a single judge of co-ordinate stature interfering with another in exercise of a statutory authority grant is, inand of itself, logically problematic.

It is a recipe for confusion or endless re-litigation or both. But even before that, as Justice Bychokwas acting in the capacity of a superior court judge in relation to an indictable criminal trial, and inasmuch as his ruling was faciallywithin the jurisdiction given to him as a trial judge under the Criminal Code and the necessarily incidental functions of law associatedwith that position, his decision would not and should not be subject to an application for certiorari at common law. [36] There is ample case authority for that position.

In R v Sarson, (SCC), [1996] 2 SCR 223 at para 23, theCourt referred to In Re Sproule (1886), 1886 CanLII 51 (SCC), 12 SCR 140 at pp 204-205, and said that the jurisdiction of a superiorcourt is insulated from collateral attacks. At that stage of my oral reasons, I mentioned that references had been made in argument toCunningham, and to CBC v Dagenais, (SCC), [1994] 3 SCR 835 at para 40 of [1994] SCJ No 104 (QL) and to R vAwashish, 2018 SCC 45 at para 19, [2018] 3 SCR 87.

See also by comparison State of New South Wales v Kable, [2013] HCA 26,which refers to the colorful observation of HWR Wade in “Unlawful Administrative Action: Void or Voidable” (167) 83 Law QuarterlyReview 499 at p 512 that: It is fallacious to suppose that

an act can be effective in law only if it has always had some element of validity from the beginning.However destitute of legitimacy at birth, it is legitimated when the law refuses to assist anyone who wants to bastardize it. What cannotbe disputed has to be accepted. [37] While one might readily and accurately question this sardonic observation as a valid and persisting idea of the administrativelaw – notably in light of the Constitutionalization of judicial review performed by s 96 superior courts throughout Canada -- it is

Parliament that specifies rights of appeal under its criminal law power and that specifies the manner of review of superior courts in thatcontext. Parliament has not been unreasonably stinting in so doing, actually. But there is only one basket clause of criminal law appellatejurisdiction under our law. It is possessed by the “general appeal court for Canada” under the Supreme Court Act. That backstopappellate jurisdiction is applicable to criminal law (and to every other law) as exemplified in Dagenais. [38] Awashish also adds further bars to certiorari.

One is that the error under review cannot merely be an error of law. It mustreach the level of jurisdictional error. Denial of a motion by counsel to withdraw from the record is not plainly a matter of jurisdictionalerror. Another is that there are prudential and legal reasons for not allowing interlocutory appeals. Awashish says: 10 Criminal appeals are statutory; with limited exceptions, there are no interlocutory appeals (Criminal Code, s. 674; Mills v. TheQueen, (SCC), [1986] 1 S.C.R. 863, at p. 959; R. v. Meltzer, (SCC), [1989] 1 S.C.R. 1764, at p. 1774;Dagenais v.

Canadian Broadcasting Corp., (SCC), [1994] 3 S.C.R. 835, at p. 857). There are a few statutory exceptions;and the extraordinary remedies, notably certiorari, provide relief in narrow circumstances. The general rule is that “criminal proceedingsshould not be fragmented by interlocutory proceedings which take on a life of their own” (R. v. DeSousa, (SCC), [1992]2 S.C.R. 944, at p. 954). Fragmenting criminal proceedings by permitting interlocutory appeals risks having issues decided without thebenefit of a full evidentiary record — a significant source of delay and an inefficient use of judicial resources (R. v.

Johnson (1991), (ON CA), 3 O.R. (3d) 49 (C.A.), at p. 54). 11 The availability of extraordinary remedies is constrained by similar concerns (Attorney General of Quebec v. Cohen, (SCC), [1979] 2 S.C.R. 305, at p. 310). The use of certiorari is therefore tightly limited by the Criminal Code and the common lawso as to ensure that it is not used to do an “end-run” around the rule against interlocutory appeals (R. v. Robertson (1988), 1988 ABCA87 , 41 C.C.C. (3d) 478 (Alta. C.A.), at p. 480). For example, in preliminary inquiries, jurisdictional error must be shown forcertiorari to be granted.

This includes where the preliminary inquiry judge commits an accused to stand trial in the absence of anyevidence on an essential element of the offence (Skogman v. The Queen, (SCC), [1984] 2 S.C.R. 93, at p. 104), or actscontrary to the rules of natural justice (Patterson v. The Queen, (SCC), [1970] S.C.R. 409, at p. 414, per Hall J.;Forsythe v. The Queen, (SCC), [1980] 2 S.C.R. 268, at p. 272; Dubois v. The Queen, (SCC), [1986] 1S.C.R. 366, at p. 377; R. v. Deschamplain, 2004 SCC 76, [2004] 3 S.C.R. 601, at para. 17).

See also R v Guimont, 2015 QCCA 518 at paras 3-7, [2015] JQ no 2302 (QL), leave denied [2015] SCCA No 154 (QL) (SCC No36391). [39] There may be a distinction between the Supreme Court’s decision in Druken and the present situation, but the Supreme Courtof Canada said in R v Druken, (SCC), [1998] 1 SCR 978 at para 1 that “The decision to remove Counsel does not go tojurisdiction.” [40] It has been suggested, as it was in Dagenais, that ‘third party’ orders in criminal matters should be considered to lie outsidethe framework of the criminal proceedings and therefore should be reviewable by some means on a more immediate basis than waitingthe outcome of the criminal proceedings.

For example, the Canada Evidence Act provides for a distinct procedure for Crown privilegeclaims arising during the course of a criminal trial: compare R v Brassington, 2018 SCC 37, [2018] 2 SCR 616. But the absence of astatutory means of immediate review in Dagenais did not itself authorize a bypass of the limitations of certiorari in the publication bansituation there. [41] The situation before me, accordingly, came down to whether or not there was some other means by which I could proceedother than the common law rule of certiorari.

In my oral reasons, I pointed out that Parliament, having chosen to enact the Court intoexistence in the way they did, had taken the step of making sure that certiorari was not available against the Nunavut Court of Justice ina situation like this where the Court was exercising the sort of jurisdiction exercised here. [42] As I mentioned orally, it did seem to me that, in reality, what had happened was that Parliament had invaded the field, as itwere, and that there were some legislated grounds in which a sort of review substituting for certiorari could obtained as against aNunavut Court of Justice judge in the exercise of that judge's jurisdiction (or lack of it as the case may be).

That legislated authorityexisted by operation of

Section 573.1 of the Criminal Code. That

section reads as follows: Application for review - Nunavut 573.1

(1) An application for review maybe made by the Attorney General or theaccused, or by any person directly affectedby the decision or order, to a judge of theCourt of Appeal of Nunavut in respect of adecision or order of a judge of the NunavutCourt of Justice (

a) relating to a warrant or summons; (

b) relating to the conduct of a preliminaryinquiry, including an order undersubsection 548(1); (

c) relating to a subpoena; (

d) relating to the publication orbroadcasting of information or access to Demande de révision: Nunavut 573.1

(1) Le procureur général, l’accuséou quiconque est directement touchépeut présenter une demande de révisionà un juge de la Cour d’appel du Nunavutrelativement aux mesures — décisionsou ordonnances — prises par un juge dela Cour de justice du Nunavut :

a) concernant un mandat ou unesommation;

b) concernant la tenue d’une enquêtepréliminaire, notamment dans le cadredu paragraphe 548(1);

c) concernant une assignation;

d) concernant la communication de

the court room for all or part of the proceedings; (

e) to refuse to quash an information or indictment; or (

f) relating to the detention, disposal or forfeiture of any thing seized under a warrant or order. Limitation

(2) A decision or order may not be reviewed under this

section if (

a) the decision or order is of a kind that could only be made in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in

section 552; or (

b) another statutory right of review is available. Grounds of review

(3) The judge of the Court of Appeal of Nunavut may grant relief under subsection (4) only if the judge is satisfied that (

a) in the case of any decision or order mentioned in subsection (1), (

i) the judge of the Nunavut Court of Justice failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction, or (ii) the decision or order was made as a result of an irrelevant consideration or for an improper purpose; (

b) in the case of a decision or order mentioned in paragraph (1)(a), that (

i) the judge failed to comply with a statutory requirement for the making of the decision or order, (ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met, (iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts, (iv) the warrant is so vague or lacking in particularity that it authorizes an unreasonable search, or (

v) the warrant lacks a material term or condition that is required by law; (

c) in the case of a decision or order mentioned in paragraph (1)(b), that the judge of the Nunavut Court of Justice (

i) failed to follow a mandatory provision of this Act relating to the conduct of a preliminary inquiry, renseignements ou l’accès à la salle du tribunal pour tout ou

partie des audiences;

e) portant refus d’annuler une dénonciation ou un acte d’accusation;

f) concernant la détention, l’aliénation ou la confiscation de biens au

titre d’un mandat ou d’une ordonnance. Restriction

(2) La mesure ne peut être révisée en vertu du présent

article si, dans une province ou un territoire autre que le Nunavut, elle est de celles qui ne peuvent être prises que par une cour supérieure de juridiction criminelle ou par un juge au sens de l’article 552 ou si la loi prévoit un autre recours en révision. Motifs

(3) La révision ne peut être accordée que si le juge de la Cour d’appel estime que:

a) s’agissant d’une mesure visée au paragraphe (1), soit le juge de la Cour de justice a manqué à un principe de justice naturelle ou a omis ou refusé d’exercer sa compétence, soit elle a été prise pour des considérations non pertinentes ou à des fins irrégulières;

b) s’agissant d’une mesure visée à l’alinéa (1)a) : (

i) le juge a enfreint une exigence législative quant à sa prise, (ii) elle a été prise en l’absence de preuve quant à l’existence d’une exigence législative la justifiant, (iii) elle a été prise sans souci de la vérité, par la fraude ou au moyen de fausses déclarations intentionnelles ou l’omission intentionnelle de déclarer des faits essentiels, (iv) le mandat est tellement vague ou présente tant de lacunes qu’il permet une fouille ou perquisition abusive, (

v) il manque une condition pertinente requise en droit pour le mandat;

c) s’agissant d’une mesure visée à l’alinéa (1)b), le juge : (

i) n’a pas respecté une disposition obligatoire de la présente loi en matière d’enquête préliminaire, (ii) a renvoyé l’accusé à son procès sans preuve qui permette à un jury ayant reçu des instructions valables d’en arriver à un verdict de culpabilité, (iii) a libéré l’accusé alors qu’il y avait des éléments de preuve pour permettre à un jury ayant reçu des instructions

(ii) ordered the accused to stand trial when there was no evidence adduced on which a properly instructed jury acting reasonably could convict, or (iii) discharged the accused when there was some evidence adduced on which a properly instructed jury acting reasonably could convict; (

d) in the case of a decision or order mentioned in paragraph (1)(

c) or (d), that the judge of the Nunavut Court of Justice erred in law; (

e) in the case of a decision or order mentioned in paragraph (1)(e), that (

i) the information or indictment failed to give the accused notice of the charge, (ii) the judge of the Nunavut Court of Justice did not have jurisdiction to try the offence, or (iii) the provision creating the offence alleged to have been committed by the accused is unconstitutional; or (

f) in the case of a decision or order mentioned in paragraph (1)(f), that (

i) the judge failed to comply with a statutory requirement for the making of the decision or order, (ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met, or (iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts. Powers of judge

(4) On the hearing of the application for review, the judge of the Court of Appeal of Nunavut may do one or more of the following: (

a) order a judge of the Nunavut Court of Justice to do any act or thing that the judge or any other judge of that court failed or refused to do or has delayed in doing; (

b) prohibit or restrain a decision, order or proceeding of a judge of the Nunavut Court of Justice; (

c) declare invalid or unlawful, quash or set aside, in whole or in part, a decision, order or proceeding of a judge of the Nunavut Court of Justice; (

d) refer back for determination in accordance with any directions that the judge considers to be appropriate, a decision, order or proceeding of a judge of the Nunavut Court of Justice; valables d’en arriver à un verdict de culpabilité;

d) s’agissant d’une mesure visée aux alinéas

(1) c) ou d), le juge a commis une erreur de droit;

e) s’agissant d’une mesure visée à l’alinéa (1)e) :

f) s’agissant d’une mesure visée à l’alinéa (1)f) : (

i) le juge a enfreint une exigence législative quant à sa prise, (ii) elle a été prise en l’absence de preuve quant à l’existence d’une exigence législative la justifiant, (iii) elle a été prise sans souci de la vérité, par la fraude ou au moyen de fausses déclarations intentionnelles ou l’omission intentionnelle de déclarer des faits essentiels. Pouvoirs du juge de la Cour d’appel

(4) À l’audition de la demande, le juge peut :

a) ordonner à un juge de la Cour de justice d’accomplir tout acte que celui-ci ou un autre juge a omis ou refusé d’accomplir ou dont il a retardé l’exécution;

b) prohiber ou encore restreindre toute mesure ou procédure d’un juge de la Cour de justice;

c) la déclarer nulle ou illégale, ou l’infirmer en tout ou en partie;

d) la renvoyer pour décision, conformément aux instructions qu’il estime appropriées;

e) accorder toute réparation au

titre du paragraphe 24(1) de la Charte canadienne des droits et libertés ;

(

e) grant any remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms ; (

f) refuse to grant any relief if the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred or that the subject-matter of the application should be determined at trial or on appeal; and (

g) dismiss the application. Interim orders

(5) If an application for review is made, a judge of the Court of Appeal of Nunavut may make any interim order that the judge considers appropriate pending the final disposition of the application for review. Rules

(6) A person who proposes to make an application for review shall do so in the manner and within the period that may be directed by rules of court, except that a judge of the Court of Appeal of Nunavut may at any time extend any period specified in the rules. Appeal

(7) An appeal lies to the Court of Appeal of Nunavut against a decision or order made under subsection (4). The provisions of

Part XXI apply, with any modifications that the circumstances require, to the appeal.

f) refuser d’accorder un recours s’il estime qu’aucun tort n’a été causé, qu’il n’y a pas eu d’erreur judiciaire ou que l’objet de la demande devrait être examiné lors du procès ou de l’appel;

g) rejeter la demande. Mesures provisoires

(5) Un juge de la Cour d’appel peut prendre les mesures provisoires qu’il estime indiquées avant la prise de la décision définitive. Procédure

(6) La demande de révision doit être introduite de la manière et dans les délais, sous réserve de prorogation par un juge de la Cour d’appel, que les règles de cour peuvent prévoir. Appel

(7) Appel peut être interjeté à la Cour d’appel du Nunavut contre une mesure prise au

titre du paragraphe (4), la

partie XXI s’appliquant, avec les adaptations nécessaires, à un tel appel. [ 43 ] Clearly, this provision provides for a second level of appeal from a single judge such as myself to a panel of the Court of Appeal of Nunavut. (Good idea: a single judge might just be in error.) It also effectively acknowledges in s. 573.1(2)(

a) and (

b) that review would not be available for matters that would be barred for certiorari . As I said, Parliament can be taken to know its book. [ 44 ] In my oral reasons, I also referred to the fact that both counsel for the Crown and counsel for Ms. Grant had properly pointed out that the terms of

Section 573.1 did not extend to the situation that we were dealing with at the time. They were correct. There is a very clear list of the types of topics that were covered by 573.1 of the Criminal Code . The subject of removal or withdrawal of counsel was not included. Perhaps it should be. That’s up to Parliament. [ 45 ] Those topics did, significantly, include at s. 573.1(1)(

d) the topics which are covered by Dagenais . It was not without relevance for me to note that the language specifically refers to publication bans there. Therefore, it seemed quite clear to me that 573.1 of the Criminal Code was enacted by Parliament with a limited degree of interference, one might say, by a judge of the Nunavut Court of Appeal in mind as to the operations of the Nunavut Court of Justice.

As noted, this is a process which under 573.1 of the Code is called review as opposed to certiorari . [ 46 ] As I said in my oral reasons, the Parliament of Canada was, of course, by means of the Criminal Code , and in executing its legislative jurisdiction under s. 91(27) of the Constitution Act, 1867 , quite able to make any decisions it chose in terms of how to endow statutory courts with powers to review other statutory courts. [ 47 ] In this instance, it was quite clear that Parliament had chosen to allow the Nunavut Court of Appeal by a single judge pursuant to

Section 20 of the Judicature Act of Nunavut to participate on certain matters. However, I thought it also was quite clear that I should be mindful of the fact that Parliament had chosen very specifically how to go about doing this and to what extent they are prepared to grant the authority to do it. [ 48 ] It did also seem to me that, under the circumstances, I could not devise or recognize a remedial power on my part simply because these were “extraordinary times” or that there was “no sense” or that it was “ludicrous” to have no interlocutory remedy.

The position that there had to be some remedy was passionately and ably put forth by Ms. Martin and by Mr. Lyndon for the Crown in this instance to support my taking jurisdiction.

[49] It is a classic tenet, as the Privy Council long ago said in Board v Board, (UK JCPC), [1919] UKPC 59,[1919] AC 956, that where there is a legal problem there should be a legal answer. The venerable maxim of equity that ubi jus ibiremedium, still continues to this day: see eg Lehtimaki & Ors v Cooper (Rev 1) [2020] UKSC 33 at para 144, [2020] 3 WLR 461.Indeed, it is conceptually linked to judicial independence and the Act of Settlement of 1701.

Nevertheless, Parliament has chosen todefend, one might say, the jurisdiction of the operations of trial courts like the Nunavut Court of Justice in their continuing efforts toregulate the indictable criminal trials in their jurisdiction. [50] In the end, it did not seem possible for me as a Court of Appeal judge to interfere with the operations of an indictable criminaltrial court in the requested way unless Parliament had expressly chosen to grant the jurisdiction to do so. [51] In my oral reasons, I then turned to the alternative position which was proposed by Crown Counsel Mr. Lyndon.

Although hedid not put it precisely in these terms, he was suggesting that there is a characteristic of a superior court that superior courts can assist oneanother. Accordingly, in his view, I was in an equal position as a superior court judge to reconsider the decision of Justice Bychok andcome do a different conclusion on Ms Grant’s application. [52] Mr Lyndon’s position was not without precedent.

In a decision called R v Trang, 2002 ABQB 1036, 331 AR 216, leavedenied (2003) 320 NR 387n, [2003] SCCA 64 (QL) (SCC No 29607), I was asked to step into an ongoing indictable criminal trial beingconducted by a colleague of the trial court, because the motion involved whether or not he should recuse from the case. That case was aso-called ‘mega-trial’ situation. [53] In that case, my role was not to purport to remove the trial judge, but to hear submissions and to make a recommendation tothe trial judge whether or not he ought to step aside.

My participation there was with his consent and with the consent of the ChiefJustice of the Court. In explaining what I was doing I wrote: 11 For the purposes of this initial ruling as to my jurisdiction, I do not find it necessary to make any final determination as to howbest and most justly to characterize this motion in that respect.

I should emphasize at the outset, however, that I do not take up this matteras in any sense a review court or supervisory court relative to the functioning of the Trang Trial before Binder J., or relative to anyjurisdiction or authority of Binder J. in any of his capacities. 12 Moreover, I do not read the referral ultimately to me as intended to convey any such quasi-appellate jurisdiction. It is settled lawof Constitutional dimensions that one superior court judge is not 'superior' to another superior court judge in relation to the latter'sexercise of jurisdiction: Sarson; Duong.

Indeed, the intervention of the Chief Justice in the referral which has been made does notenhance my jurisdiction to the level of review or supervision: Tobiass and Beauregard. As said in Beauregard: Historically, the generally accepted core of the principle of judicial independence has been the complete liberty of individual judges tohear and decide the cases that come before them: no outsider -- be it government, pressure group, individual or even another judge --should interfere in fact, or attempt to interfere, with the way in which a judge conducts his or her case and makes his or her decision.

Thiscore continues to be central to the principle of judicial independence. [Emphasis added] 13 The ability of the Judicial Branch of Government to function in its "inherent domain" as guardian of the Rule of Law and ofConstitutional values - such as expressed in Burns - would be seriously harmed by allowing spontaneous intrusions by one judge uponanother's designated jurisdiction in a manner collateral to established processes of appeal, review or supervision, such as reflected in s.101 of the Constitution Act, 1867.

Accordingly, even Chief Justices with jurisdiction to assign might not do so: F. (D.P.). [Footnotesomitted] [54] Later in my reasons I added: 79 As mentioned above, this case comes down to whether, in the interests of justice and notably in service of the repute of justice, asuperior court Trial Judge may seek the assistance of another superior court judge [of equal jurisdiction] to resolve a motion for recusalof the Trial Judge because, in the Trial Judge's view, that motion ought to be resolved in that manner.

The jurisdiction of the Trial Judgeto refer on such a point, and the assisting judge to receive a referral, raises questions of both the common law and of legislation enactedby Parliament in relation to the jurisdiction of superior court judges. 80 Parliament, in the exercise of its criminal law power under s. 91:27 of the Constitution Act, 1867 could have chosen to expresslyand unambiguously prohibit such a form of referral for assistance.

In order to limit the trial jurisdiction of the superior court of criminaljurisdiction composed of s. 96 judges, Parliament would have to do so by legislation with "exceptional clarity": see e.g. Cooper. InCooper, the context concerned a DNA order essentially mandated under the Criminal Code upon the Respondent's conviction forManslaughter. The Trial Judge had stayed the order pending appeal. No express power to stay such an order pending appeal appears inthe Code.

Nonetheless, the Court of Appeal said: [5] The authorities are clear that to oust or displace the inherent jurisdiction of a superior court, Parliament must use clear andunambiguous language. Some authorities use the phrase "exceptional clarity" to describe the level of clarity which statutory languagemust reach to effect a displacement of inherent jurisdiction. 81 In so saying, the Court of Appeal was referring to cases such as P. (J). Parliament has not prohibited the sort of referral done hereby Binder J., clearly or otherwise.

That does not entirely conclude any debate about whether the jurisdiction should be recognized andutilized from time to time. I take from this only that Parliament has not excluded what Binder J. did, and that Parliament has notprohibited what is proposed that I do.

I turn to the positions of the parties as to jurisdiction on the recusal motion. [Footnotes omitted] [55] Later still after describing the objections to my jurisdiction, and distinguishing s 669.2 of the Criminal Code I said: 126 In the result, I am persuaded that the common law jurisdiction of superior courts includes the ability of a Trial Judge to seek, if sominded, the assistance of another superior court judge to deal with a question of recusal, and that it also includes the ability of that othersuperior court judge to provide that assistance.

There are various public policy justifications for so doing - the repute of justice being a

main one, but curial efficiency being another. [ 56 ] It is noteworthy that Parliament has since enacted into the Criminal Code a variety of provisions creating jurisdictional roles for criminal case managers and interlocutory decision makers who are not the trial judge. It would be the height of folly, and for that matter of vanity, for me to suggest that my decision had anything to do with that legislative change. My ruling is one part of the book that Parliament probably did not know all that well. Rather, Parliament probably heard from a lot of other sources on this topic.

For example, Parliament would have known that LeBel J in Quebec v Laroche 2002 SCC 72 at para 46 , [2002] 3 SCR 708 that “criminal procedure has scarcely kept up” with the situations “in which pre-trial, interlocutory or incidental decisions are made”. He also said the law had “no procedure for an appeal to the intermediate appellate courts in the case before this Court.” [ 57 ] The Crown’s proposed alternative also led me to add, in my oral reasons, that for me to assist the operations of a superior court like the Nunavut Court of Justice, I would have to be asked by the Nunavut Court of Justice to do so.

I could not simply barge into the case. [ 58 ] At that point of my oral reasons, I concluded that while I was invited by Crown counsel to step in as another judge as it were and also help manage the course of these proceedings relative to Mr. Komoartok, I did not feel that I had jurisdiction to do that unless I was asked to do so by the Nunavut Court of Justice judge that had responsibility for the case at the time. Unlike in Trang , neither Justice Bychok nor any other member of the Nunavut Court of Justice had asked me to do so.

Accordingly, I found that I would therefore be an intruder to do that. [ 59 ] At that stage of my oral reasons I then spoke to the circumstances of the case. It seems to me that I should just quote what I said there directly: What I am left with though is a very difficult and very complex situation in that it is quite clear, at least from the material that was provided to me, that what was given to Justice Bychok by way of information was, as it turns out now, incomplete. I am not suggesting that he was left in the dark in any way.

In fact, the information, the completion of the information is subsequent to the appearance in front of Justice Bychok, and the information that is relevant is that, in fact, Ms. Grant is not counsel for Mr. Komoartok. No matter whether she is allowed to withdraw from the record as counsel, she is not counsel. That is the reality that has been provided to me, so it would not be fair, and, in fact, it would be a great injustice to her for proceedings to be brought against Ms. Grant for failing to participate in a trial for which she is not counsel and that she, in fact, is not even wanted as counsel.

That would be something which, you know, no Appellate Court in later proceedings would find tolerable. It would be simply unjust, and that is also redoubled by the fact that, in fact, Ms. Manocchio is prepared to be counsel and would be counsel and would be accepted as counsel by Mr. Komoartok. During the course of the debate of this case, I made the observation that it seemed to me that Justice Bychok would probably be willing to change his mind.

I do not know that for a fact, but I certainly know that if I were a trial judge, and one counsel willing to substitute for another and the matter would proceed on the date scheduled with that new counsel in place and ready to go and with the confidence of the client that that counsel is prepared and ready to go, then the type of policy considerations that would affect the mind of a judge such as Jordan and so forth would certainly be met, and as a consequence the trial judge would just simply say, okay, trial start, here we go.

Now, whether Justice Bychok or someone else of the Nunavut Court of Justice presides at the time this starts on August 17th, it would be very difficult for me to imagine why a judge would then start debating whether or not, no, I want the person that I forced to hang onto this case despite the fact no one else does. I mean that does not seem, would not seem very logical to me, and it would be hard to predict that that would happen.

So anyway, that, of course, is all obiter dicta because I cannot dictate how that would happen but just pointing out that it does seem to me that, practically speaking, there is an answer to the situation that has arisen here. In effect, though, and to summarize what I have indicated so far, I am not satisfied that I have jurisdiction either by common law application of certiorari or for that matter by the application of

Section 573.1 of the Criminal Code to interfere with the decision which has been made. However, I would make the observation -- and I do this with some intent to be impactive in saying this -- that Ms. Grant is not counsel, in my opinion, for Mr. Komoartok, and Mr. Komoartok has made arrangements to have another counsel who is willing to act for him, and, as far as I am concerned, that should have the blessing of the Court.

That is up to the Nunavut Court of Justice to decide, but I do not see in any way how any damage to the administration of justice would occur by simply allowing that to go forward as proposed in a practical sense by counsel. The practical sense offered by counsel, of course, does not grant me jurisdiction. It is simply an observation that I just feel I should make in these circumstances.

I might say though: I am also grateful for the substantial body of information that has been provided to me about the predicament that the Nunavut Court of Justice itself and that the Legal Services Board and the other participants have made in connection with this matter. I do think that it is necessary for me to say that, based on my reading of all the material that has been provided to me, everyone has been acting in good faith here. It would be unfair to criticize any of the counsel who have participated in this as having done anything improper. That includes the board or Ms.

Grant or any other counsel involved in this. A full understanding of the information that is before me makes me certain that, in fact, everyone has done the best they could under very difficult circumstances and that particularly the volunteering of Ms. Manocchio is a clear demonstration, it seems to me, of the type of good faith conduct by barristers and under such difficult circumstances. And I commend everybody that has participated in this, and that includes Ms. Grant. I do not think there was any fairness – unfairness on the part, I should say -- of Ms.

Grant in what she did or any lack of good faith on her part. It seems to me that the realities are what they are, and, but [sic] having said that, I do not believe I have jurisdiction to order the Nunavut Court of Justice to do anything in connection with formally allowing Ms. Grant off the hook except to say, as far as I am concerned, she is not counsel for this individual any further, and he is going to have counsel of his own as he has chosen.

[ 60 ] My impression of the realities of this case has not changed since I said those words. IV. Conclusion [ 61 ] Consequently, the application that was brought before me was dismissed. Application heard on August 7, 2020 Reasons filed at Iqaluit, Nunavut this 21st day of October, 2020 Watson J.A. Appearances: G. Lyndon for the Respondent Her Majesty the Queen Respondent T. Komoartok (no appearance) M. Martin for the Applicant