R. v. Issakiark, 2021 NUCJ 36

Image Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Issakiark, 2021 NUCJ 36 Date: 20210831 Docket: 14-20-71 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: William Issakiark _________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): J. Johnson Counsel (Accused): M. Eaton-Kent Location Heard: Iqaluit, Nunavut Date Heard: August 13, 2021 Matters: Application to attend trial remotely pursuant to s.715.25(1) of the Criminal Code of Canada REASONS FOR JUDGEMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Restriction on Publication: By court order made under

section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.” I. INTRODUCTION [ 1 ] William Issakiark was charged with sexual assault and unlawful confinement. The week before his trials were to proceed on a circuit in Arviat, counsel for the accused applied to the court for permission for counsel to appear remotely for the trial.

The crown consented to the application. [ 2 ] I heard submissions and denied the application, indicating I would provide reasons, as required by the Criminal Code ( s.715.25(3) ). These are my reasons. [ 3 ] For the purposes of this decision the term “ remote appearance” will refer to both audioconferences and videoconferences. II. BACKGROUND [ 4 ] The charges against the accused arise from incidents on August 6, 2020. The accused was released from custody shortly after his arrest and was residing in Rankin Inlet.

I am advised that he was remanded back into custody and subsequently released again, to reside in Yellowknife. I understand that there were various new charges, including breaches of his release conditions. Some of these charges remain outstanding. The accused was again remanded into custody and remains in custody. It is not clear how much time he has been in custody. [ 5 ] The Crown proceeded by indictment. On October 26, 2020, the accused elected to be tried by a judge and jury.

During the covid pandemic the court was not holding jury trials in communities. [ 6 ] During submissions on this application counsel advised that in June 2021, the accused re-elected to judge alone so that he could get an earlier trial date. On the same date the re-election was made, a trial date was set for August of 2021. At the time the re-election was made and the August trial date set, the accused knew that his lawyer would not be able to attend the August circuit.

Despite this, the accused instructed his lawyer to set the August trial date. [ 7 ] The accused is adamant that his trial proceed next week, despite his lawyer not being available for that circuit and despite the delay to the next available trial date being approximately six weeks. III. PRELIMINARY MATTERS A. Procedure for Remote Appearances

[ 8 ] On August 3, 2021, the Applicant submitted a Request to Appear by Videoconference and requested a Microsoft Teams link. The request was unusual in that it was a request for counsel and not a witness, to appear remotely. There were also concerns regarding the technology that was being requested. The Criminal Registry directed the request be reviewed by a judge. [ 9 ] The Nunavut Court of Justice has two Practice Directives that address remote hearings. Both of these Practice Directives were brought into effect well before the COVID-19 pandemic.

Neither one of the Practice Directives is applicable to the matter before me. B. Practice Directive #4 [ 10 ] This Practice Directive permits counsel in criminal matters to phone in to court to speak to a matter on a criminal docket. Counsel wishing to phone in must file the required form no later than 3 days before the docket appearance. [ 11 ] Counsel appearing on criminal chambers matters or on any matter in which viva voce evidence will be called, are required to attend in person unless they have leave of the court to appear by telephone. C.

Practice Directive #29 [ 12 ] This Practice Directive deals with the use of videoconferencing in criminal matters. It is restricted to video appearances by witnesses and is limited to Iqaluit. The Practice Directive requires the filing of an application to appear by video and a process for the opposing party to object to the witness appearing by video. If there is an objection to the witness appearing by video, there will be a hearing and the court will provide direction.

Even if the opposing party consents to the witness appearing by video, the court maintains the discretion to require the personal attendance of the witness. [ 13 ] As stated, neither Practice Directive #4 or #29 apply in the circumstances of this matter. I directed that counsel bring the application by way of a Notice of Motion with an Affidavit in Support. That direction was complied with and the matter was set down for a hearing. D. The Affidavit [ 14 ] The Affidavit filed in support of the application is that of Defence Counsel’s legal assistant.

This is a practice which is becoming increasingly common yet, in my view, should be undertaken with caution. [ 15 ] In my view there are two concerns with the affidavit; one is the source of the information and the other is the sufficiency of the information contained in the affidavit. [ 16 ] Affidavits are simply an alternate way of putting evidence before the court. They are sworn evidence.

An affiant should understand that they may be called upon to attend court to be cross-examined on the contents of an affidavit. [ 17 ] Affidavit evidence can be based on information and belief (hearsay) however, the affiant must identify the source of the information and state that they believe it to be true. [ 18 ] The affidavit filed in this matter amounts to double hearsay. The Affiant does not have personal knowledge of any of the information contained in the affidavit. The source of her information is not identified. The nature of the information suggests that the source is counsel for the accused.

Counsel for the accused also would not have personal knowledge of much of the information contained in the affidavit. The information would have come to counsel from the accused.

[ 19 ] The appropriate source of the affidavit in support of this motion is the accused. It is the accused who can speak to having re- elected to a judge alone trial so as to get an earlier trial date. It is the accused who can speak to having told his lawyer to set the August trial date despite his lawyer not being available at that time. It is the accused who can swear to his understanding of the procedure involved in a remote hearing and its potential impact on the trial process. [ 20 ] In my view the affidavit also provides insufficient information.

Much of the information required by the court was provided by way of counsel’s submissions rather than by way of evidence in affidavit form. [ 21 ] The affidavit does not set out the reason why counsel is not available for the trial. It does not set out what attempts, if any, were made to transfer the file to alternate counsel so that the trial could proceed in August.

It does not speak to how rights of the accused, such as the right to consult with counsel in private, will be preserved. [ 22 ] When the Affidavit is reviewed, one is left with the impression that the application is being made on counsel’s initiative, in order to accommodate his schedule. However, after hearing submissions from counsel the impression is that the accused is the driving force behind the application; that the accused is insisting on the earliest possible trial date and also on having his lawyer participate, knowing that his counsel is not available.

The affidavit does not convey the full context of the application. IV. CRIMINAL CODE [ 23 ] The Criminal Code has a number of provisions that address remote appearances. For the purposes of this matter the applicable provisions are in

Part XX11.01/ Remote Attendance by Certain Persons. [ 24 ] The default position is that all participants appear personally in court. This is set out in s. 715.21, which states: 715.21 Except as otherwise provided in this Act, a person who appears at, participates in or presides at a proceeding shall do so personally . [ 25 ]

Section 715.22 of the Criminal Code sets out the guiding principle for the application of the “ remote appearance” provisions.

It states: 715.22 The purpose of the provision of this Act that allow a person to appear at, participate in or preside in a proceeding by audioconference or videoconference, in accordance with the rules of court, is to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice . [ 26 ] The Criminal Code has different provisions for remote appearances by the accused and remote appearances by other participants in a proceeding. [ 27 ] Remote appearances by an accused are governed by s.715.23 and s.715.24 of the Criminal Code .

Section 715.23 sets out the factors that the court must consider in determining whether or not to permit the accused to appear remotely. [ 28 ]

Section 715.24 addresses concerns regarding in-custody accused, stating that when an in-custody accused does not have access to legal advice during remote proceedings, the court must be satisfied that the accused understands the proceedings and that decisions made are voluntary.

[ 29 ] I refer to this

section because s.715.24 acknowledges the significance of the solicitor/client relationship and the need to be particularly cautious if that line of communication is impaired in any way. [ 30 ]

Section 650, which provides for video appearances by in-custody accused, also acknowledges the importance of the solicitor/client relationship as it provides that an in-custody accused can appear by videoconference for parts of the trial only where no evidence is being given and only if there is the ability for him to communicate privately with counsel. [ 31 ] The principles which underlie the provisions in s.715.24 and s. 650 are of assistance in this matter as the same separation of accused and his lawyer occurs when counsel seek to appear remotely. [ 32 ]

Section 715.25 is applicable to the circumstances of this application. This

section applies to “ participants”, not including an accused, a witness, a jury, or a judge. The

section provides: 715.25(2) Except as otherwise provided in this Act, the court may order a participant to participate in a proceeding by audio conference or videoconference, if the court is of the opinion that it would be appropriate having regard to all the circumstances, including

a) the location and personal circumstances of the participant;

b) the costs that would be incurred if the participant were to participate personally;

c) the nature of the participation;

d) the suitability of the location from where the participant will participate;

e) the accused’s right to a fair and public hearing; and

f) the nature and seriousness of the offence. V. ANALYSIS [ 33 ] It is important to start the analysis with the basic presumption that the default appearance for all court proceedings is personal attendance. This is acknowledged in s.715.21. Any participant who attends in a manner other than personally must fall within a provision which provides for non-personal attendance. There are many such provisions in the Criminal Code (for example, providing that agents may appear on

summary matters to counsel appearing for an accused if there is a designation of counsel). [ 34 ] It is also important to remember that the court retains the discretion to require the personal attendance of participants. This discretion should not be exercised in an arbitrary or unfair manner. The overriding consideration will be the proper administration of justice.

Also, while the court relies heavily on counsel, it is ultimately the responsibility of the court to ensure an accused receives a fair trial and that the proper administration of justice is not undermined. [ 35 ] An analysis of the factors enumerated in the Criminal Code must be undertaken with these principles in mind. A.

Location and Personal Circumstances of the Participant [ 36 ] Before embarking on a consideration of this factor, I accept that counsel is attempting to follow his client’s instructions in moving these matters forward. [ 37 ] Having said that, this application must be considered in the context of circuit court. The Legal Services Board (LSB) provides Defence Counsel for community circuits. It is not unusual for there to be different counsel on court circuits to a community. It is the usual practice that one lawyer will assist an accused with entering a plea and setting a matter for trial on the next circuit.

On the next circuit, when the matter is proceeding to trial, an accused will often have a different lawyer than the one who assisted with the plea.

[ 38 ] There may be times, such as when there are conflicts or when cases are particularly serious or complex, that one lawyer will be assigned by the LSB to see a matter through from beginning to end. There are also certain specified offences which are identified as “choice of counsel” matters, meaning an accused selects his lawyer from those on the legal aid panel. In such circumstances, the accused must accept that his lawyer will have other commitments, including personal ones, that might affect the scheduling of the trial.

If the accused cannot accept that, then he must get a different lawyer. [ 39 ] I understand the applicant to be resident in Toronto, Ontario. He is a member of the Nunavut bar who comes up regularly for circuit work, particularity in the Kivalliq region. The affidavit material provides no information as to the reason why he cannot attend in Arviat next week, beyond a broad statement that he is unable to attend. There is some case law which suggests that, as an officer of the court, such a statement by counsel should be accepted without delving further.

These cases were decided in the context of the Covid pandemic, during a time when personal attendance at courthouses was at the very least discouraged and, quite often, prohibited. Further explanation was not required; everyone was restricted by the same circumstances. [ 40 ] I invited counsel to give a fuller explanation to the court, as it seems to me that the information is necessary for there to be a full consideration of the relevant factor. I was advised that there are two reasons why counsel cannot attend in Arviat. The first is that his sister, who resides outside of the country, was in Canada visiting.

The second reason is that he has other court commitments. [ 41 ] As much of the world eases back into travel and gatherings it is quite understandable that counsel would place high importance on spending time with his sister, who I presume he has not seen in some time. While understandable, this factor does not amount to an “inability” to attend, but rather, to a choice not to. Such a circumstance might be a reasonable basis for an adjournment request; everyone must have holidays and breaks from work and we must work together to accommodate schedules.

However, there is a distinction between being “unable to attend” and being “inconvenienced by attending”. [ 42 ] The second factor put forward by counsel is that he has other court commitments. No further information was provided regarding the location or nature of the other court commitments. No information was provided as to why the other court commitments cannot be attended to by other counsel instructed for that purpose or cannot be adjourned. No information was provided as to why those other court matters could not be attended to remotely.

No information was provided as to why it would be appropriate to modify the manner of trial on serious charges for an in-custody accused rather than adjourn the other matters. [ 43 ] I am not suggesting that counsel’s schedules are not to be accommodated by the court. Everyone’s schedules must be accommodated to some degree. Despite careful planning there will be times when counsel find themselves in a scheduling conflict. Where a conflict arises between counsel’s

schedule and a court commitment, the conflict must be resolved in a manner that is fair to everyone. The appropriate resolution will vary depending on the nature of the matter before the court. [ 44 ] In my view, both of the reasons put forward by counsel are scheduling matters. They are not factors that demonstrate an inability to attend court. [ 45 ] It is concerning that we are dealing with this application the week before the scheduled trial date. It is concerning that counsel initially notified the court of his intention to appear remotely by filing a form that does not apply to these circumstances.

The process undertaken by counsel, both with respect to the timing of the notification and the manner in which the court was initially notified of the request to appear remotely, presumes a right to appear remotely. Such is not the case.

Indeed, pursuant to Practice Directive #4, counsel was obliged to seek leave of the court to appear remotely for the argument of this motion. [ 46 ] If circumstances have changed since the trial date having been set, the appropriate remedy in the circumstances before me is to either have someone else act for the accused or to request an adjournment of the trial. [ 47 ] The accommodation sought by counsel is disproportionate to the impact it will have on the trial process. B. Costs of Personal Attendance [ 48 ] The court must be cautious as to how it assesses the relevance of this factor in the Nunavut context.

The cost of holding court in each of the communities in Nunavut is significant. It will always be more cost effective to hold proceedings “remotely”, with all

participants located in various locations. To do so however, has the potential to significantly impact the proper administration of justice. [ 49 ] While the cost of personal attendance may be a relevant factor when the court is considering permitting a remote appearance by participants who will play a relatively minor role in the trial process, such as hearing the evidence of witness who will give uncontested evidence on a matter of low relevance, it will be given less consideration when the attendance of key witnesses and justice system participants is being considered. C.

Nature of the Participation [ 50 ] The Applicant is a key participant in the trial process. Defence Counsel have a special and important relationship with an accused. Accused persons rely heavily on the advice, direction, and skill of their counsel. In this particular matter, the liberty rights of the accused are in serious jeopardy. It is acknowledged that a conviction on one or both charges may result in a sentence in a federal penitentiary. [ 51 ] Participation of counsel by videoconferencing is a poor substitute for in person attendance.

Communication between counsel and his client will not be as natural and effective. Non-verbal communication may go unnoticed. Counsel and his client must be able to communicate privately during the course of the trial, as issues arise. It is important for the client to be able to communicate with his lawyer as the complainant is testifying. Sometimes this communication can be a simple confirmation of something or an exchange of words lasting only a few seconds.

Such communication is important but would not be available if the matter proceeded in the format proposed. [ 52 ] Counsel has submitted that he will communicate with his client by having circuit counsel sit with his client and communicate with him, presumably electronically, to advise when his client wants to speak with him. The court would then take a break so that they could speak privately.

While this is one way of proceeding, it is disruptive to the trial process and, as previously mentioned, not as effective a means of communication between counsel and client as both being in attendance. [ 53 ] Further, it is not clear why circuit counsel cannot do the trial. While the court will not, unless called upon to do so, concern itself with the manner in which counsel are retained, in the circumstances of this case, the court is being called upon to make significant changes to the normal trial process.

In my view, this requires further justification than has been provided. [ 54 ] I have been advised that the accused has made a complaint against one lawyer who is employed with the Legal Services Board, placing that lawyer in a conflict. I have advised that it has been determined that it is best for the Applicant to continue as counsel. I have also been advised that circuit counsel will sit with the accused, so clearly she is not in conflict.

I have also been told that although the consequences flowing from a conviction are serious, the trial itself is straightforward, so presumably there is still sufficient preparation time for alternate counsel. D. Suitability of The Location from Where the Participant Will Participate [ 55 ] As the Applicant is a member of the bar, the court can presume that his personal setting for participating in the trial is appropriate, in that it is quiet, with an appropriate background and demeanour. [ 56 ] What is of concern is the suitability of the technology.

The Applicant proposes to use “MS Teams” and have the camera of a laptop computer directed towards the complainant as she testifies. It is not clear to me if those in the courtroom will be able to see the Applicant or if the Applicant will be able to see the courtroom, in particular the judge and Crown Counsel. [ 57 ] The Applicant has submitted that he has observed the successful use of Microsoft Teams in a trial context in Nunavut, where non- material witnesses testified. [ 58 ] That is not the experience of the court.

In recent months the court has been providing Microsoft Teams links for all court proceedings. This link essentially replaces the telephone. My experience is that it is often necessary, even in Iqaluit, to terminate the

video link as the quality of the link is poor. [ 59 ] Difficulties with the technology have the potential to disrupt the examination of witnesses. It would seem to me that Defence Counsel should be particularly concerned with this, as the effective cross-examination of material witnesses is considered one of the most important tools in the trial process. Many counsel consider it important to establish a “flow” to their cross-examination and abhor interruptions.

Yet the use of technology that is of low quality and reliability is an invitation to such interruptions. [ 60 ] This is not to say that the court cannot accommodate video appearances, even in communities. The court has provided video links for witnesses in various communities however the technology used is more complex and requires lead time to prepare and the assistance of the court services Information Technology personnel. E.

Accused ’ s Right to Fair and Public Hearing [ 61 ] The court relies on counsel (Defence Counsel in particular) to some extent to safeguard the rights of the accused and to ensure a fair trial. However, the ultimate responsibility for providing a fair trial lies with the court. [ 62 ] In my view the technology proposed has the potential to seriously impair the trial process.

The accused, in his understandable eagerness to have his matter proceed in a timely manner, is seemingly willing to forgo important aspects of the trial process that help to ensure a fair trial. [ 63 ] I say this while noting that there are several court decisions that have permitted various participants to participate remotely in trials.

For example some decisions regarding remote appearances in the context of a pandemic have considered the issue of trial fairness and have concluded that witnesses can be viewed more clearly through videoconferencing than if they were to appear, in person, masked and behind layers of plexiglass ( R. v. Mischuk , 2021 ONCJ 202 , para. 4 ; R. v. Jefferies , 2021 ONCJ 98 , para.33). [ 64 ] Some decisions have permitted Crown Counsel, the judge, and material witnesses to appear remotely (Jefferies, supra.). In my view, the role of Crown Counsel is different than that of Defence Counsel.

Crown Counsel does not have a client and does not take instructions from witnesses. Crown Counsel does not have the need to be able to communicate privately throughout the trial process with the equivalent of a client. F. Nature and Seriousness of the Charges [ 65 ] The charges before the court are serious. The liberty interests of the accused are in serious jeopardy. G. Policy Considerations [ 66 ] I appreciate that my decision in this matter might be viewed by some as being contrary to my comments in other matters (see: R. v. Ford 2021, NUCJ 7 , para. 72-77 ).

Although Ford was an application for a judicial stay due to delay, the issue of remote hearings was raised by counsel and was addressed in the decision. In the Ford decision I stated that, contrary to assertions by counsel, the court could accommodate remote trials. In my view, the comments made in Ford on the issue are not inconsistent with my decision in this matter. There are several reasons for this. [ 67 ] First, Ford was decided in the context of the ongoing pandemic and the inability of the court to travel. That is no longer the case. Court operations, including circuits and jury trials, have resumed.

Accordingly, the weight to be given to the various factors is different. [ 68 ] Secondly, in Ford I recognized the infrastructure gap in Nunavut and the often poor quality of internet and electronic connections. I

noted the considerable preparatory work to be undertaken for a matter to proceed remotely. [ 69 ] Finally, a remote trial is normally able to preserve the right of an accused and his counsel to communicate throughout the proceedings. [ 70 ] The proviso for remote appearances are designed to serve the proper administration of justice, including by ensuring fair and efficient proceedings and enhancing access to justice ( s.715.22 , Criminal Code ). [ 71 ] This principle must be considered in the Nunavut context, which is one laden with cultural, language, and societal differences amongst the various participants and users of the court system.

These differences can lead to misunderstandings that may be difficult to identify and overcome even in an in-person setting, where a person is more attuned to body language and atmosphere. Communicating remotely exacerbates such concerns. [ 72 ] I am also of the view that the court must take a broad view of what constitutes the administration of justice. The Nunavut Court of Justice serves 26 communities throughout the vast territory. There are legal aid clinics in three communities and a Crown’s office in one community.

There are a handful of private lawyers who are resident in the territory, all resident in Iqaluit, the capital city. The court has a long history of travelling to communities to deal with matters, both criminal and civil. [ 73 ] Historically, the lawyers who go into the communities on court circuits do more than address matters on the dockets. A visit by the court to a community can be an opportunity for people who have simple legal inquiries or need referrals, to speak with a lawyer and get direction.

In that way, having the court travel to communities enhances access to justice in a broader context than any particular case. [ 74 ] Equally importantly, having lawyers and judges who reside and travel throughout the territory provides all of us who are providing legal services an opportunity to better understand the communities and people that we serve. [ 75 ] I am not saying that there is no role for the use of technology in our courts. There are undoubtedly times when technology will enhance the delivery of services.

But we must be cautious to ensure that the use of technology is for the purpose of enhancing the administration of justice and not a matter of simple convenience. [ 76 ] If there is a trend towards greater use of technology by justice system participants, then there is a larger discussion that must take place. This discussion must go beyond the court and lawyers and must include other justice system participants and, most importantly, the communities and the people that we serve. This Dated at the City of Iqaluit this 2nd day of September, 2021 ___________________ Justice S. Cooper Nunavut Court of Justice