R. v. Komoartok, 2020 NUCJ 29

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Komoartok, 2020 NUCJ 29 Date: 202008 04 Docket: 10-19-36, 10-19-40, 10-19-41, 08-19-559 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Timothy Komoartok ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): A. Dion Counsel (Accused): I.

Grant Location Heard: Iqaluit, Nunavut Date Heard: July 24, 2020 Matters: Detention review under Criminal Code of Canada, RSC 1985, c C-46, s. 525 ; adjournment request; application for counsel to withdraw REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] This case concerns several issues which were triggered by a mandatory judicial review of Mr. Komoartok’s pre-trial detention. [ 2 ] The accused, Timothy Komoartok, has been charged on four Criminal Code [1] Informations relating to incidents which happened in Pangnirtung in 2018 and 2019. He consented to his remand, and he has been subject to pre-trial detention at the Baffin Correctional Centre (BCC) since March 2019. One practical effect of Mr. Komoartok’s consenting to his remand is that he has never had a bail hearing. [ 3 ] Mr.

Komoartok is scheduled to appear during the next Pangnirtung sitting of this Court starting on August 17. He is represented by counsel, Ingrid Grant of Toronto. Two of Mr. Komoartok’s files are scheduled for trial: the first deals with a December 2018 allegation of assault with a weapon, [2] the second with a February 2019 allegation of aggravated assault. [3] Mr. Komoartok is charged with two other accuseds on the second file. [ 4 ] Mr.

Komoartok has two other files on the docket: one concerns March 2019 allegations including sexual assault, sexual touching, and assault with a weapon. [4] The fourth file concerns an August 2019 allegation that Mr. Komoartok assaulted a guard while on remand at BCC. [5] II. BACKGROUND [ 5 ] On May 27, 2020, the sentence administrator at BCC filed with the Court a Criminal Code

section 525 detention review notice.

Section 525 requires the court to conduct a mandatory detention review after an accused is denied bail.

Section 525 requires this Court to determine whether Mr. Komoartok’s continued detention can be justified. [ 6 ] The BCC

section 525 notice pertained to all four of Mr. Komoartok’s outstanding files. I note in passing that this notice ought to have been filed by BCC with the Court many months earlier. [6] Mr. Komoartok appeared in Court on June 1, 2020 in response to this notice, and the hearing was adjourned several times. Finally, the detention review was scheduled to be heard on July 24. [ 7 ] Mr. Komoartok was represented on July 24 by his lawyer who appeared by telephone from Ontario. However, Mr. Komoartok refused to leave his jail cell to attend the detention review by telephone, so he was absent from the proceedings.

Defence Counsel asked me to adjourn the detention review for 30 days to permit her to try to organize a bail release plan. If granted, this adjournment would also result in Mr. Komoartok losing his trial date next month. [ 8 ] The Crown opposed the adjournment request. Among other things, he raised the issue of whether Mr. Komoartok had implicitly waived his right to the detention review because he refused to attend Court. [ 9 ] At the end of the hearing, Defence applied to the Court to be removed as Mr. Komoartok’s lawyer. Defence stated that it is “impossible” for her to represent Mr.

Komoartok during the upcoming Pangnirtung circuit. Defence cited the position of the Legal Services Board (LSB) regarding non-resident counsel.

[ 10 ] As I stated last week in R v Tunnillie , [7] the

section 525 detention review is a systems check to make sure that an accused does not fall through the cracks. Parliament intended the mandatory

section 525 detention review to ensure that an accused does not languish on remand, and that his trial be held in a reasonable time. [8] Once the jailer has filed its

section 525 notice, the court must

schedule the hearing date “without delay” to the “first available date.” [9] [ 11 ] Myers set out a two-part-test which must be satisfied before the court may adjourn the detention review. The adjournment must “clearly” be one which “serves the interest of justice and the underlying purposes of the provision” [section 525]. [10] [ 12 ] Defence Counsel says Mr. Komoartok needs 30 days to respond properly to the detention review. In my view, the interests of justice would not be clearly served by granting Mr. Komoartok’s adjournment request. I heard from counsel last week that the Nunavut Bar received the May 27, 2020

section 525 notice at the same time as the Court. Thus, Legal Aid, if not Ms. Grant, had known about the upcoming detention review for two months – ample time within which to try to prepare a release plan. [ 13 ] The Defence also failed to meet the second part of the two-part Myers test. The second part of the Myers test says that any adjournment must conform to the purposes of the detention review regime.

As we have seen, the purpose of the regime is to ensure that an accused does not fall through the cracks while sitting on remand, and that the judge act as a case manager to ensure that the case proceeds along to a timely resolution. To that end, it appears only logical that any adjournment ought to be a reasonably short one so as not to undermine the purpose of the timely detention review process. [ 14 ] In my view, by his failure to attend court, Mr. Komoartok attempted to frustrate the timely holding of the detention review. I, therefore, ruled that Mr.

Komoartok had absconded and that he had waived his right to be present at the hearing. [ 15 ] I denied Defence Counsel’s request to adjourn the detention review. Where Mr. Komoartok had never had a bail hearing, I conducted a detention-review-cum-bail-hearing as required Myers . [11] [ 16 ] I heard the allegations and submissions by counsel. The onus at this bail hearing was carried by the Crown. I reserved my decision until today. I will give the reasons for my bail decision during the upcoming Pangnirtung circuit.

For the moment, I rule that the Crown has met its onus on the secondary and tertiary grounds for detention. [12] I deny bail to Mr. Komoartok and remand him into custody until all his matters are dealt with by the Court. III. ISSUES [ 17 ] This decision addresses two important issues which must be resolved before the scheduled August 17 trials. A. Is it in the interests of justice to adjourn Mr. Komoartok’s files beyond the Pangnirtung circuit next month? B. Is it appropriate to permit Defence Counsel to withdraw as Mr. Komoartok’s lawyer? IV. ANALYSIS A. Is it in the interests of justice to adjourn Mr.

Komoartok’s files beyond the Pangnirtung circuit next month? [ 18 ] In my view, the answer to this question is no. [ 19 ] I am dealing with a request by Defence Counsel to adjourn Mr. Komoartok’s four criminal files. Defence Counsel’s dilemma stems

from the position taken by the LSB respecting non-resident members of its lawyers panel. [ 20 ] Counsel provided a letter by Stephanie Boydell, LSB’s Chief Legal Officer, dated July 6, 2020. Ms. Boydell stated, and I quote: Put simply, LSB will not be bringing any non-resident private panel lawyers into NU while the travel/entry restrictions are in place. [ 21 ] Ms. Boydell had previously sent a three-page memorandum to the LSB non-resident panel on this issue. The memorandum is undated. Defence Counsel acknowledged that she received the memorandum, but she could not tell me when. The relevant portions of Ms.

Boydell’s memorandum follow: It remains that until travel restrictions for non-residents are lifted, Nunavut Legal Aid cannot commit to having non-resident counsel appear in the territory to conduct trials or other hearings … Unless the travel restrictions are waived through an essential worker exemption, which still requires non-residents to spend at least 14 days in quarantine in the south before travelling to Nunavut, non- residents are not permitted in the territory.

There may be individual cases where counsel can make arrangements in their own practice to manage 14 days in quarantine and Nunavut Legal Aid can support those arrangements in part, but as a general rule, the health and safety and financial barriers to bringing non-resident lawyers into the territory are significant … Nunavut Legal Aid is open to reviewing individual requests should counsel feel it necessary to travel to Nunavut while the travel ban is in place.

However, it is the individual lawyer’s responsibility to seek and obtain the exemption to travel to Nunavut as a non-resident and then enter into quarantine for the mandatory 14 days. [ 22 ] Mr. Komoartok’s situation, and his lawyer’s dilemma, were discussed in Court as recently as July 6. Among other things that day, Defence Counsel told the Court: The situation that I’m in is that I’m non-resident counsel, and I’m in a situation of being affected by the travel ban, and I don’t really have any new information about when that’s likely to be lifted and when I would be able to set dates in any of Mr.

Komoartok’s matters, including the one where he has co-accused. [13] [ 23 ] Mr. Komoartok was present in court and stated emphatically: I’d like a lawyer from the territory I requested. I requested from the territory. I didn’t want to deal with the quarantine stuff if that’s gonna prevent me from having court dates on my matters.

I need a lawyer from the territory. [14] [ 24 ] Defence Counsel jumped in at this point and stated: I’m looking – Timothy, I am looking into that for you, but for now I don’t have an answer. [15] [ 25 ] I asked Defence Counsel what steps she had taken since July 6 to investigate the matter. She told me she had contacted LSB “several” times but not in writing. She was not able to tell me how many discussions she had, and she did not tell me with whom she had spoken. She stated that she was told that the LSB could not provide a lawyer for Mr.

Komoartok because their lawyers were in conflicts of interest. [ 26 ] I take judicial notice that Nunavummiut share a travel bubble with the NWT. Defence Counsel told me that she never discussed the possibility of finding Mr. Komoartok a lawyer from the LSB’s NWT panel. [ 27 ] I then asked Defence Counsel whether she had applied for a non-resident exemption so she could fulfill her commitment to Mr.

Komoartok. Defence Counsel confirmed she was aware of the non-resident exemption process, but had not taken any steps in that direction. Nor had she discussed this possibility with anyone at Legal Aid. [ 28 ] On June 11, Chief Justice Sharkey, after extensive consultations with the Chief Public Health officer for Nunavut, sent a memorandum to the LSB. In that memorandum, the Chief Justice stated that the emergency closure order would not be renewed and that the Nunavut Court of Justice would resume regular operations effective July 6.

That means that the LSB has had ample time to adapt to the new reality. [ 29 ] The LSB, and the Legal Aid program, are what we call creatures of statute. That means that the LSB is created by law and has the lawful responsibility to meet the terms of its mandate. [ 30 ] The law which governs the operations of the LSB is the Legal Services Act . [16] This act created the LSB to act at arm’s length from the Nunavut Government. For present purposes, the key part of the act is found in

section 7(

a) which states that the LSB has the responsibility “to ensure the provision of legal services to all eligible persons”. This provision is fundamentally important, so I shall repeat it: the LSB has the responsibility “to ensure the provision of legal services to all eligible persons”. In other words, the LSB, and its Legal Aid program, have the lawful obligation to make sure that Mr. Komoartok is represented by a lawyer at his upcoming trials next month. [ 31 ] The fact that the Territorial government has imposed travel restrictions does not suddenly remove this clear legal obligation.

The LSB is bound by law and is required to provide Mr. Komoartok with a lawyer – this fundamental legal obligation trumps every other consideration. [ 32 ] In 2016, the Supreme Court of Canada issued a seminal ruling in the case of R v Jordan . [17] In Jordan , the Supreme Court imposed presumptive time frames within which criminal cases must be completed. In Jordan , the Supreme Court firmly criticized the Canadian justice system for perceptions of institutional indifference in making sure cases are heard in a timely fashion. [ 33 ] Why do I mention Jordan here? Nunavut’s Chief Public Health officer, Dr.

Patterson, seems to have been careful not to commit when the current travel restriction may, and I repeat, may be loosened. If I were to grant Defence Counsel her adjournment, it would mean that Mr. Komoartok, who is presumed innocent, would remain on remand indefinitely . Mr. Komoartok has already been on remand since March of last year. I repeat what I have said before – there is no institutional indifference in the Nunavut Court of Justice. In these circumstances, I will not, and indeed I cannot, extend Mr.

Komoartok’s remand indefinitely into the future. [ 34 ] This discussion is relevant to my ongoing role as the detention review judge. It ought to be clear that I am gravely concerned that the LSB’s current position will unreasonably delay Mr. Komoartok’s two trials. Where the presiding detention review judge is concerned about unreasonable delay, as I am here, Criminal Code section 525(4) gives him the authority to “give directions for expediting the proceedings”. [ 35 ] Mr. Komoartok has already been on remand for 510 days. I would be responsible for causing Mr.

Komoartok to continue to languish on remand if I were to grant the sought-after indefinite adjournment. I cannot do so and apply the clear directions of the Supreme Court in Myers . [ 36 ] There is another important aspect to this issue. Mr. Komoartok is co-charged on the second file with Jessica Akpalialuk and Joshua Evic. Ms. Akpalialuk recently changed her plea from not guilty to guilty. Mr. Evic, though, is scheduled to be tried at the same time as Mr. Komoartok. Like Mr. Komoartok, Mr. Evic is on remand, although he is also serving a sentence on another matter. [ 37 ] If I grant Mr.

Komoartok an adjournment, the question then becomes what happens with Mr. Evic? Mr. Evic’s lawyer says in that case, he would apply to have Mr. Evic tried separately from Mr. Komoartok. [18] This would result in the Crown having to call its witnesses in two separate trials. Crown Counsel says that the Crown would be opposed to severance. Any such severance motion by Mr. Evic would only serve to delay the trial even further into the future.

[ 38 ] For all these reasons, this is an appropriate case for me to issue a section 525(4) direction to expedite the trial. In my capacity as a detention review case manager, I deny Defence Counsel’s request for an adjournment, and I direct the parties to be prepared to proceed to trial during the August 17 to 21 Pangnirtung circuit. This Court expects Mr. Komoartok to be represented by a lawyer when his matters are called next month. B. Is it appropriate to permit Defence Counsel to withdraw as Mr.

Komoartok’s lawyer? [ 39 ] In my view the answer to this question is no. [ 40 ] The various challenges posed by the Nunavut government’s travel restrictions are not new, and have been obvious since the restrictions were introduced. [ 41 ] Furthermore, the LSB has known since June 11 that the Nunavut Court of Justice would resume regular operations effective July 6. The LSB could, and ought to have been, pro-active in its efforts to fulfill its legal obligations to provide lawyers for their clients.

As I stated earlier, the LSB’s position—that it will not bring in non-resident counsel for the duration of the travel restrictions except in restricted circumstances—does not respect its legal obligation to make sure its clients have counsel. [ 42 ] Instead, the evidence suggests strongly that nothing was done to address Mr. Komoartok’s situation beyond considering the conflicts of interest of resident staff counsel who are in the Territory. Certainly, that was all that Defence Counsel reported of her several discussions with someone at Legal Aid.

As well, they never discussed the possibility of drawing on the NWT lawyers’ panel. [ 43 ] Mr. Komoartok’s case is the second one I have dealt with this week where the LSB non-resident policy is front and centre. [ 44 ] In my view, Defence Counsel also did not take reasonable steps to ensure that she fulfilled her obligations to her client, Mr. Komoartok. Defence Counsel practices in Nunavut out of her office in Toronto. Any lawyer who takes on commitments in Nunavut must be ready and able to do what is necessary to represent their client.

If Defence Counsel was not prepared to explore the essential worker exemption, and to discuss it with the LSB, I believe she had an ethical duty to return the file to Legal Aid in a timely fashion. [ 45 ] Knowing Defence Counsel’s non-resident status, the LSB ought to have raised the essential worker exemption even if Defence Counsel did not. It is simply too late now for Defence Counsel to withdraw, and unacceptable for the LSB to leave Mr. Komoartok abandoned without a lawyer. [ 46 ] In all the circumstances, I deny Defence Counsel’s application to withdraw from the record as Mr. Komoartok’s lawyer. V.

CONCLUSION [ 47 ] Pursuant to section 525(4) , I direct that Mr. Komoartok’s two trials be held on the next Pangnirtung circuit. The clerk shall prepare a removal order accordingly. Dated at the City of Iqaluit this 4th day of August 2020 ___________________ Justice P. Bychok

Nunavut Court of Justice