R. v. Anugaa, 2018 NUCJ 2

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Anugaa, 2018 NUCJ 2 Date: 20180201 Docket: 13-13-32 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Lukasie Anugaa ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Barry McLaren Counsel (Accused): Patrick Bruce Location Heard: Iqaluit, Nunavut Date Heard: August 25, 2017, September 7, 2017 and November 3, 2017 Matters: Canadian Charter of Rights and Freedoms,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (UK), 1982, c 11, s. 11(b); R v Jordan , [2016] 1 SCR 631, 2016 SCC 27 ; Change of venue; Voir Dire REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. BACKGROUND [ 1 ] This case is about two allegations of indictable historic sexual assault. It has turned into a case about pre-trial delay. [ 2 ] The accused, Lukasie Anugaa, is charged with two sexual offences. The offences are alleged to have happened in Sanikiluaq between May 2, 1977 and May 2, 1978. Mr. Anugaa was charged on an Information sworn by the police on July 8, 2013. Mr. Anugaa has elected to be tried by a court composed of a judge and a jury. [ 3 ] At various times, five different jury trial dates have been scheduled. Sheriffs have served subpoenas on prospective jurors four different times.

Two of the first four trials went ahead, each one of which ended in a mistrial. The other two did not proceed. As I write this, Mr. Anugaa’s fifth and latest trial is scheduled to start on January 15, 2018. Over 54 months will have passed between the day Mr. Anugaa was charged and the anticipated end of his upcoming trial. [ 4 ] The Defence has made a pre-trial application to the Court. The application is based on

section 11(

b) of the Canadian Charter of Rights and Freedoms [1] and the Supreme Court of Canada decision in R v Jordan . [2] Defence Counsel, Patrick Bruce, maintains that Mr. Anugaa’s Charter right to a trial within a reasonable time has been violated. Therefore, he argues the Court should enter a stay of proceedings, which would bring the case to an end. The Crown opposes a stay of proceedings. [ 5 ] The parties are also at odds over where another trial should be held if I do not grant the stay. [ 6 ] The Crown has brought an application to move the jury trial to a different community.

The Crown Prosecutor, Barry McLaren, argued that every eligible adult has already likely been summonsed at least once to serve on the jury. He stated that witnesses testified in open court during the two jury trials that went ahead. Furthermore, the accused testified in the first jury trial. “[I]n a small community”, he continued, “word travels fast”. [3] Mr. McLaren also noted that Mr. Anugaa is notorious in the community.

He said it would be “impossible to secure a jury that doesn’t have some prior knowledge of either the offence [or] the prior proceedings”. [4] He said fair trial interests require a change in venue. [ 7 ] Defence Counsel said the trial should again be held in Sanikiluaq. He noted that a jury was successfully chosen for one trial.

He stated he believed there have not been any jury trials in Sanikiluaq for at least two years, so the jury pool is not “overly taxed”. [5] He stated the Crown’s concerns were “somewhat alarmist”. [6] He urged the Court to respect the longstanding tradition of having the jury trial in the community where the charges arose. [ 8 ] I heard the applications in Iqaluit on August 25 and September 7, 2017. I gave my decision to the parties on November 3, 2017. However, I delayed releasing the decision until the trial was completed. II.

ISSUES [ 9 ] The Charter application turns on whether the delay in bringing this case to trial has been unreasonable. In my respectful view, the delay in the circumstances of this case has been reasonable. [ 10 ] The change of venue application turns on whether an unbiased jury pool can be formed in Sanikiluaq. In my respectful view, it is necessary in the unique circumstances of this case to hold the trial in a different community. [ 11 ] I shall deal with each issue in turn. III. LAW A. The law –

section 11(

b) of the Charter [ 12 ] In 2016, the Supreme Court in R v Jordan changed the way we interpret and apply

section 11(

b) of the Charter . [7] This new Jordan approach does not account for the exceptional challenges and unique cultural circumstances in delivering justice to Nunavummiut. I shall say more about that in a moment.

[ 13 ] In Canada, there are two categories of criminal charges. Criminal charges are either

summary or indictable. Each category is dealt with somewhat differently and each has its own scale of punishments. The Jordan case treats each category differently when considering pre-trial delay. [ 14 ] The new law post- Jordan may be summarized as follows.

The Court first determines the length of total pre-trial delay. [8] The judge must then subtract delay either waived or caused solely or directly by the Defence. [9] If the remaining net delay is more than “30 months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry)”, [10] the delay is presumed to be unreasonable. In Nunavut, the remaining delay of more than 30 months for cases proceeding by an Indictment or after a preliminary inquiry is presumed unreasonable. The magic number for

summary charges in provincial or territorial court is 18 months. [11] Past the 18 or 30 months marks, as in this case, it is up to the Crown to justify that delay. [12] [ 15 ] Apart from Defence delay, the majority in Jordan decreed only one other category which may be used to justify pre-trial delay: exceptional circumstances.

A circumstance is said to be exceptional if it was reasonably unforeseeable or unavoidable and the Crown could not reasonably remedy the resulting delay once the circumstance arose. [13] Two examples of exceptional circumstances listed in Jordan are “discrete events” and cases which are “particularly complex”. [14] [ 16 ] The delay caused by “discrete events” can be deducted from the remaining net delay.

Where the case is particularly complex, no deductions are needed—the Court instead will consider if the complexity justifies the time spent on the case. [15] Complex cases can be very time consuming. [ 17 ] There is also a transitional period to account for reasonable reliance on the law as it previously existed. [16] [ 18 ] Central to my analysis will be the statement in Jordan that the list of exceptional circumstances is not closed. [17] B.

The law – trial venue [ 19 ] The Criminal Code permits the Crown or Defence to apply for a change in the venue or location of a trial to another territorial division. [18] The location of a trial may be moved, under the Criminal Code , if it “appears expedient to the ends of justice”. [19] However, that

section does not apply to the Nunavut Court of Justice because Nunavut is not divided into separate territorial divisions. There is a gap in the legislation. [ 20 ] Access to justice is a fundamental Canadian concern while our courts must be open to public scrutiny (barring exceptional circumstances).

In Nunavut, this approach is codified in rule 37(1) of our Criminal Rules of Court, which provides that trials shall be held in the community where the offence is alleged to have happened “unless the convenience of the parties otherwise requires”. [20] Rule 37(6) states further that nothing limits the discretion of the Court to determine where a trial should be held. This rule reflects the longstanding history and practice of our Court. [21] [ 21 ] The practice has developed here whereby a party who seeks to move a trial from one community to another must apply to the Court.

In cases involving jury trials, a written application must be filed with the Court and served on the opposing party. In non-jury cases, the request must be addressed in open court. [ 22 ] As Justice Sharkey outlined in R v Arnakallak , this Court has never arbitrarily moved trials from one community to another. [22] The Court has adopted a principled approach by attempting to bring justice to everyone’s door according to the intent and spirit of rule 37(1). [ 23 ] As I have mentioned, the Criminal Code

section 599 test does not apply to Nunavut. That said, I see no reason in principle why the same test should not apply here. This is consistent with the Northwest Territories, where the Northwest Territories Supreme Court has adopted the

section 599 of the Criminal Code test in relation to their rule 37 . [23] Therefore, in my view, the test I must apply in this case is whether a change in trial venue appears to be expedient to the ends of justice. [24] IV. ANALYSIS A. The administration of justice in Nunavut in the context of Jordan

[ 24 ] At the outset, I must say a few words about the unique cultural circumstances and exceptional challenges in delivering justice to Nunavummiut. These challenges pose a particularly difficult problem for trial judges who must apply Jordan delay rules in Nunavut. [ 25 ] In Canada, criminal law is the constitutional responsibility of the federal Parliament. Each territory and province bears the responsibility and costs of its administration. [ 26 ] Nunavut sprawls over the northern two-thirds of Canada’s vast landmass.

Our 38,000 people live in 25 remote communities scattered over Nunavut’s 2,093,190 square kilometres. [25] Since the days of Justice Jack Sissons, we have striven to make justice accessible to everyone, no matter where they live. [26] [ 27 ] The Nunavut Court of Justice is based in Iqaluit and it travels regularly to each one of the other 24 far flung communities. Distances between our communities are immense: Kugluktuk is 3,392 kilometres from Iqaluit. Arctic Bay is 1,229 kilometres from Iqaluit. To get to five of our communities, the Court must stay overnight in Yellowknife.

To get to Sanikiluaq, we must travel via Montreal. Flight times alone to western Kitikmeot can consume up to seven hours. Not surprisingly, the Court’s travel budget alone for 2016-17 was $2,486,000. [27] [ 28 ] Anyone who lives north of 60 knows that these statistics tell only a small part of the story. The harsh arctic climate is unforgiving. Planes go “mechanical” [28] and flights are delayed or cancelled. The September 2017 circuit to Kimmirut was cancelled because of a blizzard. Here in Iqaluit, we had our first near-blizzard of the season on September 30.

Court days in Iqaluit were cancelled during two consecutive weeks in November when we had two more storms. More Iqaluit court time was lost in December due to stormy weather. The busy November court circuit in Rankin Inlet had to be cancelled due to a blizzard; high winds prevented a Judge from arriving there until Wednesday afternoon of the December circuit. Another recent blizzard prevented the court party from travelling to Pangnirtung.

Every year, significant court time is lost due to weather. [ 29 ] The cancellation of a Nunavut court circuit has an impact out of all proportion to a similar cancellation in the south. In Ottawa, for example, there are regular and frequent court sittings. A court closure there entails only a minor inconvenience and delay. Not so in Nunavut. Nine Nunavut communities including Sanikiluaq see court circuits three times a year. One smaller community, Kugaaruk, only sees the Court twice a year.

A cancelled circuit in Kugaaruk means the possibility of no court in the community for an entire year (unless a jury trial is held there). [ 30 ] To continue with the Kugaaruk example, a person may, and sometimes is, charged with an offence shortly after the Court leaves town. In fact, that situation happened recently. That accused person will have to wait six months before sitting down with a lawyer visiting for the circuit, assuming the subsequent circuit can proceed as scheduled. Unlike Ottawa, no lawyers live in Kugaaruk. Nor are there any lawyers living in 21 other communities.

Persons arrested by the police get a brief telephone call with Duty Counsel based either in Cambridge Bay, Iqaluit or Rankin Inlet. [ 31 ] In my respectful view, the Kugaaruk example illustrates that all justice stakeholders, including this Court, must find better ways of serving Nunavut’s far-flung populace. Several years ago, this Court started holding court by telephone to help move along matters in the Kivalliq and Kitikmeot regions.

The time may have come to increase the use of telephone and videoconferencing considering Jordan . [ 32 ] That said, Jordan does not account for the impact of Nunavut’s tremendous infrastructure deficit. Communities which see regular sittings of the Court two or three times a year will continue to see that level of service despite the new Jordan rules. [ 33 ] Nunavut’s infrastructure needs are truly staggering. There is only so much taxpayer money available to the Government of Nunavut. And the available amount of funds is woefully inadequate. Alcohol abuse is tearing apart the fabric of our society.

It fills our criminal and family court dockets as well as our jails. Yet, 19 years after division from the Northwest Territories, Nunavut still does not have a single residential treatment centre. Too often, we hear about offenders dropping out of the program after being sent south for treatment because they find it too hard to succeed so far from home. Our elderly in need of care are routinely sent south, where they are isolated and surrounded by an unfamiliar culture. Adults subject to public guardianship orders – our most vulnerable citizens – are routinely shipped south.

Our federal inmates continue to be sent south. Few communities have safe houses for families in crisis. Chronic overcrowding continues. Food insecurity is widespread. Deficits in broadband communications reinforce isolation and impede the adequate delivery of remote health care and other social services. [29] [ 34 ] There is only one courthouse in Nunavut and it is located in Iqaluit. Outside Iqaluit, our Court sits in school gyms, community halls and even council chambers. Many of the community halls lack functioning washrooms.

Invariably every year, heating systems fail in a community hall during a circuit, leaving court participants to conduct court in their winter parkas and mittens. [ 35 ] Realistically, there is very little, if any, extra money to be found in Nunavut for improving the frequency of court sittings. Communities which see the Court twice or three times a year will continue to see that level of service despite the new Jordan rules.

We must make improvements with the resources available to us. [ 36 ] Jordan fails, for example, to respect our longstanding unwritten rule that each litigant, barring negligence, is entitled to one

adjournment. [30] This rule reflects the reality that we are all in this together. Accused persons, complainants and witnesses often must travel south for medical treatments which are unavailable in Nunavut. Other justice participants have been medevaced south for emergency treatment and were not available to testify during the court circuit. Others have gone south as medical escorts.

Cases in the Nunavut Court of Justice are regularly adjourned for these reasons. [ 37 ] In my respectful view, Jordan is also problematic for another reason: it does not acknowledge or reflect the central importance of Inuit Qaujimajatuqangit. [ 38 ] Nunavut’s communities are small and very closely knit. Deaths and suicides touch everyone. Circuits sometimes are cancelled out of respect for the grieving. The Nunavut Court of Justice stands down for burials and funerals.

Sentencing hearings are delayed, permitting offenders to participate in seasonal hunts. [ 39 ] In my respectful view, it is not enough to say that these events are the type of “discrete events” contemplated by Jordan . Rather, the way we deal with these events reflects the very ethos of how we approach the delivery of justice in Nunavut.

To apply Jordan justly in Nunavut, there must be a third subcategory of exceptional circumstance which reflects the territory’s unique cultural circumstances. [ 40 ] Respectfully, Jordan —as I have just said—does not account for the need to respect and incorporate Inuit culture and experience in the delivery of justice to Nunavummiut. In my lifetime, Inuit were forced out of their traditional way of life. Inuit were moved, sometimes forcibly, into artificial settled communities. Inuit society was traumatized by this re-settlement. This trauma was magnified by the experience and legacy of residential schools.

We know only too well that this trauma is inter-generational. Isolation, joblessness and despair have driven Nunavut to record the highest suicide rate in the country. [31] [ 41 ] In 2011, 86.3 per cent of Nunavummiut self-identified as Aboriginal. [32] In 2012, 50.9 per cent of Nunavummiut identified that they spoke their primary Aboriginal language “very well or relatively well”. [33] Inuit culture lives on and thrives in most areas despite the pressures of recent resettlement and technological revolution.

For all these reasons, the Nunavut Court of Justice is not just another court; it is Canada’s principal Gladue court. [34] [ 42 ] Gladue requires the Nunavut Court of Justice to account for the unique circumstances of Inuit, their culture and history. This is only right. As I have said before, justice, if it is to approach true justice, must be rooted in the community it serves. [35] We recognize that Inuit social governance continues in parallel to the application of pan-Canadian criminal law.

Therefore, we strive to incorporate the precepts of Inuit Qaujimajatuqangit into our judgments and all our practices. [ 43 ] This is a fact which applies to the present case. The Nunavut Court of Justice avoids scheduling jury trials during the extremely short arctic summers. This is a time when many Nunavummiut return to the land. The cultural and personal importance of this cyclical, seasonal reality cannot be overstated.

The practices of our Court must reflect the rhythm and cultural practices of the society it serves. [ 44 ] Two of the adjournments in this case involved scheduling the jury trial over to the autumn, instead of the summer months, to respect this tradition. [36] But, where does that fit in a one-size-fits-all Jordan analysis?

In my respectful view, it does not; and that fact highlights the weakness and dangers inherent in judges attempting to take on the role of Parliament. [37] I expect this Court will continue the no-summer-jury-trial practice into the future notwithstanding Jordan . [ 45 ] In my view, it is not appropriate to count this type of Nunavut-specific delay as Defence waiver because the Court has not made the possibility of summer jury trials an available option.

This is significant because apart from deductible Defence delay, Jordan only enumerates two subcategories which permit delay: exceptional discrete circumstances and exceptional case complexity. [ 46 ] How, then, does one fit the square Jordan peg into the round Nunavut hole while doing justice to Nunavummiut? This is a question of great importance. I do not believe the majority in Jordan intended trial judges to re-assert past colonialist attitudes and practices which ran roughshod over the Inuit. We live in a post Truth and Reconciliation Canada.

The National Inquiry into Missing and Murdered Indigenous Women and Girls is ongoing. The Nunavut Court of Justice owes a constitutional duty to Nunavummiut to respect the spirit as well as the letter of the Nunavut Land Claims Agreement. [38] [ 47 ] The Supreme Court is the highest court in the land. Therefore, I must apply Jordan . But, I must do so in a way that accounts for the unique cultural circumstances and exceptional challenges in delivering justice to Nunavummiut.

In my respectful view, a simple pro forma application of Jordan is wrong in principle. [ 48 ] I do agree with the Jordan majority that the delay “analysis must always be contextual.” [39] In my respectful view, in Nunavut, the Jordan subcategories of exceptional circumstances must be given a broad and liberal

interpretation grounded in reality. This view can be supported by the statement of the majority in Jordan that the list of exceptional circumstances is not closed. [40] The unique cultural circumstances and exceptional challenges found in Nunavut, then, constitute a third Jordan subcategory of “exceptional” circumstance.

B. “A culture of delay and complacency” [ 49 ] The majority in Jordan cited a “culture of delay and complacency” in the justice system as a rational for their decision to change the law concerning delay. [41] Whatever may be said about the situation in southern Canada, and I am not qualified to have an opinion, this concern does not apply to the Nunavut Court of Justice. [ 50 ] Despite its many challenges, and despite carrying more criminal charges per capita than anywhere else, this Court had the second lowest number of adult criminal matters which lasted more than one year in both 2014-2015 and 2015-2016. [42] In 2015 and 2016, Nunavut had one of the lowest case processing times in the country. [43] Therefore, I am confident the recognition of a new third Jordan subcategory in Nunavut will not result in a greater tolerance for delay.

C. How I applied Jordan to this case [ 51 ] One supposed advantage of the new Jordan approach is that judges no longer need to engage in “micro-counting”. [44] Judges are now to evaluate delay without a close examination of the reasons for each adjournment. There were 31 appearances and 30 adjournments in this case. [ 52 ] At the August 25 hearing, counsel painstakingly referred the Court to the transcript of each adjournment. Counsel micro-counted each appearance and attributed fault for the resulting delay. However, I will not micro-count each of the 31 appearances.

I shall not refer in this decision to each adjournment. Nor will I lay blame for the delays in bringing this case to trial. [ 53 ] The lawyers on each side have tried their best to move this case along. I agree with Mr. McLaren that Nunavut has a small and collegial Bar. I also agree with him that one practical effect of Jordan has been to poison somewhat that collegiality. I agree with the Prosecutor’s description at the August 25 hearing of one practical impact of Jordan : “ Jordan has now asked the parties to criminal litigation to engage in finger pointing … in a sense whose fault” is the delay? [45] Mr.

McLaren said he was unhappy at having to point a finger at his Defence colleagues on the other side of the courtroom. In my respectful view, this is a further unhappy consequence, albeit unintended, of the majority decision in Jordan . [ 54 ] I shall only reference those significant delays which bring the overall delay below the magic Jordan 30-month ceiling for these two indictable criminal charges. (i.) Appearances and adjournments C.i.1. From the swearing of the Information to first appearance [ 55 ] The police swore the Information on July 8, 2013.

The Court did not travel to Sanikiluaq on its next circuit until September 30, 2013. The accused appeared in court that day. I attribute that two months and 22 days delay to the new third category of Jordan exceptional circumstances faced by the Court in delivering justice to Nunavummiut. C.i.2. The accused speaks to the community over local radio, then fires his lawyer [ 56 ] The accused’s jury trial was scheduled for October 26, 2015. In the meantime, the accused spoke to the community about this case over local radio.

As a result, the Crown applied on November 2, 2015, to challenge prospective jurors for cause, and that hearing was scheduled for November 27, 2015. December 14, 2015, was reserved as the jury trial date. On November 25, 2015, Mr. Anugaa’s lawyer told the Court that Mr. Anugaa did not want a trial during the Christmas period. Mr. Anugaa also told his lawyer to tell the Court he was ill. The next day, November 26, 2015, Mr. Anugaa told the Court he had fired his lawyer. [ 57 ] On November 30, 2015, the Court rescheduled the jury trial to allow the new Defence Counsel time to prepare. Since the Court does not

schedule jury trials during the summer months, the Court reserved September 26, 2016 for the start of the trial. I will not micro-count each day of delay. I attribute the ensuing 11 months of deductible delay to the accused whose actions – in speaking to the community and firing his lawyer – were not taken legitimately to respond to the charges and could not have been foreseen or remedied by the Crown.

C.i.3. The first trial ends in a mistrial over a disputed legal issue [ 58 ] Mr. Anugaa’s jury trial started in Sanikiluaq on September 26, 2016. Part way through the trial, on September 28, the Trial Judge declared a mistrial. After some administrative appearances, the Court set a new jury trial date: December 19, 2016 in Sanikiluaq. [ 59 ] In my view, the mistrial was not the fault of either the Crown or the Defence. The mistrial could not have been foreseen or remedied by the Crown.

I attribute the ensuing two months and about 21 days of delay as a discrete exceptional Jordan circumstance. [ 60 ] This was a very short delay in all the circumstances. It reflects the fact that there is no culture of complacency in the Nunavut Court of Justice. C.i.4. The second trial ends in a mistrial when the accused raises a mid-trial objection concerning the jury [ 61 ] Mr. Anugaa’s next jury trial started in Sanikiluaq on December 19, 2016. In the middle of the trial, Mr. Anugaa’s lawyer told the Court that three members of the jury previously had been complainants in cases against the accused.

At a minimum, Mr. Anugaa ought to have alerted his lawyer and the Court to this situation during jury selection. This late disclosure triggered a mistrial. There followed several administrative appearances and a Jordan application was scheduled for June 9, 2017. [ 62 ] This delay flowed directly from the actions of the accused – waiting until mid-trial to bring forward his concern about the jury – which caused the mistrial. These actions were not legitimately taken to respond to the charges.

I attribute the ensuing five months and about 21 days delay as deductible Defence delay triggered directly by the accused. [ 63 ] If my analysis is incorrect, I would then attribute and justify the delay as a discrete exceptional circumstance. Again, this event could not have been foreseen or remedied by the Crown. [46] C.i.5. The accused refuses an early trial date in Iqaluit [ 64 ] The Jordan application did not proceed on June 9, 2017. On June 29, 2017, the Court offered to hold a jury trial in Iqaluit on September 25, 2017. Mr. Anugaa refused this date because he said he wanted to be tried in Sanikiluaq.

The Court then scheduled the jury trial for January 15, 2018, with the location of the trial to be determined by this application, which was heard on September 7, 2017. I attribute the ensuing deductible delay of six months and about 17 days (from June 29, 2017 to January 15, 2018) to the accused for refusing the September 2017 date. [ 65 ] In the event I am wrong in this analysis, the delay in scheduling the jury trial in this remote community is another example of the exceptional challenges and unique cultural circumstances faced by the Court, the new third Jordan exceptional category. C.i.6.

Delay calculation [ 66 ] I find the above-noted deductible delays totaled approximately 28 months and 20 days. Deductible Defence delay alone totaled approximately 23 months and eight days. I subtract Defence delay from the total 54 months and 11 days total delay. This calculation results in net delay of approximately 31 months and three days. After further subtracting exceptional circumstance delay of approximately five months and 12 days, the remaining net delay is approximately 25 months and 22 days.

This figure is well under the magic Jordan 30-month limit. [ 67 ] I further find that the Defence failed to prove that the net delay was unreasonable even though it fell below the 30-month ceiling. [47] D. Where should the trial be held? [ 68 ] I turn now to the second application concerning where the trial will be held.

[ 69 ] Despite its enormous size, Nunavut is a single jurisdiction. As much as possible, the Nunavut Court of Justice tries cases in the communities in which they arise. We believe justice must be accessible to all. [ 70 ] However, from time to time, the interests of justice may require a jury trial to be moved to a different community.

This is one of those cases. [ 71 ] In coming to this decision, I have considered the following factors: • Sanikiluaq is a community made up of only 882 people [48] and it has a limited pool of potential jurors; • The Court has summoned potential jurors no less than four times to try this case; • Two trials started as scheduled and witnesses testified; • Mr. Anugaa testified in open court during the first of those trials; • Mr. Anugaa spoke to the community about the case over the local radio; and • Mr.

Anugaa is notorious in the community. [ 72 ] In my view, it would be highly unlikely to secure a Sanikiluaq jury with no knowledge of the case and its history before the Court. In my view, and at a minimum, Mr. Anugaa was extremely irresponsible in speaking to the community over the radio when he knew he had elected to be tried by a jury. He tainted the judicial process that day, irredeemably in my view. V. CONCLUSION A. Charter

section 11(b) [ 73 ] Therefore, I rule that the 25 months and 22 days net delay in bringing this case to trial has been reasonable in all the circumstances. The delivery of justice in Nunavut poses unique cultural and unavoidable challenges in circumstances found nowhere else in Canada. The Defence application fails and this case shall proceed to trial in January 2018. B. Trial venue [ 74 ] Mr. Anugaa is entitled to a jury of his peers; he is not entitled to a jury of his neighbours. It is necessary in the interests of justice to hold this jury trial in another community. The closest major centre is Iqaluit.

The jury trial shall be held at the Nunavut Justice Centre in Iqaluit starting on January 15, 2018. Dated at the City of Iqaluit this 1st day of February 2018

___________________ Justice P. Bychok Nunavut Court of Justice