R. v. Akpalialuk, 2016 NUCA 1

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R. v. Akpalialuk , 2016 NUCA 01 Date : 2016-02-09 Docket: 08-14-008-CAP Registry : Iqaluit Between: Her Majesty The Queen Appellant -and- Kevin Akpalialuk Respondent _______________________________________________________ The Court : The Honourable Mr. Justice Frans Slatter The Honourable Madam Justice Shannon Smallwood The Honourable Madam Justice Frederica Schutz Memorandum of Judgment Appeal from the Acquittal of The Honourable Madam Justice S. Cooper

Dated the 10th day of September, 2014 (Docket: 08-13-120) MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) I. INTRODUCTION [1] The Crown appeals the respondent's acquittal on a charge of possession of marijuana for the purpose of trafficking. [2] When the Crown attempted to enter a photocopy of a Warrant to Search and a Report to a Justice, the trial judge indicated thatthere would have to be "strict compliance with the rules of evidence" because the respondent was self-represented.

When the Crowntendered certified copies of those documents after a brief adjournment, the trial judge ruled them inadmissible because the Crown wasrequired to give seven days' notice under s. 28 of the Canada Evidence Act, RSC 1985, c C-5 [the Act]. The Crown called no furtherevidence, and the respondent was acquitted. [3] The Crown argues that s. 36 of the Act preserves the common law, and that notice is not required before tendering records of theCourt as evidence.

Counsel for the respondent fairly concedes that point, as confirmed in authorities like R v Tatomir, 1989 ABCA 233,99 AR 188; R v WBC (2000), 130OAC l at para. 29, (ON CA), 142 CCC (3d) 490 (CA); and R v AP (1996), (ON CA), 92 OAC 376, 109 CCC (3d) 385 (CA). [4] The respondent, however, raises other issues. First, it is suggested that the trial judge never made an evidentiary finding so there isnothing to appeal. The trial judge, however, clearly ruled that the tendered documents were inadmissible.

Secondly, it is argued that theCrown did not challenge the ruling of inadmissibility and did not ask for an adjournment. Given the spontaneous ruling of the trial judge,the failure to object cannot be taken as any waiver of the Crown's right to appeal. Finally, the respondent argues that the trial judgemerely exercised a discretion to exclude evidence where its admission would be unfair.

The trial judge based her ruling squarely on theinadmissibility of the evidence under the Act and made no ruling about the inherent fairness of the circumstances. [5] In conclusion, the tendered documents were admissible as tendered, the appeal is allowed, and a new trial is directed. Appeal heard on February 9, 2016. Memorandum filed at Iqaluit, Nunavut This 9th day of February, 2016

______________________ Slatter J.A. ______________________ Smallwood J.A. ______________________ Schutz J.A. Appearances: A. Porteous for the Appellant T. Fairchild for the Respondent