R. v. Oolamik, 2012 NUCJ 21

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Oolamik, 2012 NUCJ 21 Date: 20121119 Docket: 15-09-44-2 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: Sandy Oolamik ________________________________________________________________________ Before: The Honourable Mr. Justice Sharkey Counsel (Respondent): L. Winters Counsel (Applicant): L. Moore Location Heard: Iqaluit, Nunavut Date Heard: November 9, 2012 Matters: Canadian Charter of Rights and Freedoms, s. 11 (

b) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION A. Preliminary procedural note [ 1 ] The present Canadian Charter of Rights and Freedoms [Charter] motion was argued before me, on Friday November 9, 2012. [ 2 ] As the trial date was imminent, I assured counsel a quick turnaround in deciding the case. [ 3 ] Both Counsel have filed extensive pleadings, with repeated reference to the leading case authorities from both the Supreme Court of Canada and the Nunavut Court of Justice. [ 4 ] In turn, I will reference these well known cases, but in the interest of efficiency, without citation. B.

The Motion before the Court [ 5 ] The applicant (accused), Sandy Oolamik, is charged with sexual assault, contrary to s. 271 of the Criminal Code . The alleged offence date is July 12, 2009, in Baker Lake (a community of approximately 1800 people, of which over 80% are Inuit). [ 6 ] The allegation against the applicant involves forced sexual intercourse upon a 16 year old female complainant. The Crown proceeded by Indictment and the applicant elected to be tried by judge and jury.

His trial is set to proceed on November 27, 2012. [ 7 ] In August of 2012, the applicant filed a motion to have the case against him stopped on the basis that it has taken too long to bring him to trial. To be more precise, he says that his constitutional right to be tried within a reasonable time, as guaranteed by s. 11 (

b) of the Charter , has been violated. Accordingly, he says, the proceedings against him should be Judicially Stayed. [ 8 ] The applicant’s motion is denied. The trial, scheduled for November 27, 2012, is ordered to proceed. II. THE HISTORY OF THE CASE [ 9 ] The incident giving rise to the charge took place on July 12, 2009. A couple of days later, on July 14, the RCMP received a complaint from the local nursing station that the complainant (16 years old at the time) had been sexually assaulted through forced vaginal and anal intercourse.

A sexual assault kit was completed and exhibits sent off to the crime laboratory for analysis. [ 10 ] The applicant was arrested on July 15, 2009. The Information was laid the following day, on July 16, at which time the applicant was released on an Undertaking with conditions. He is prohibited from any contact with the complainant and he is prohibited from having contact with anyone under 18 unless another adult is present.

In addition, the applicant must abide by a daily curfew between 10pm and 6am; he is, however, free of the curfew, if he leaves the community to work in the nearby mines, or for traditional pursuits, to travel on the land or sea. [ 11 ] The applicant made his first appearance on September 29, 2009, at the regular court circuit sitting of the Nunavut Court of Justice. The Crown elected to proceed by Indictment.

The accused reserved election pending disclosure of forensic reports, specifically, DNA results, and the case was put over to the next Baker Lake sitting of the Court on December 1, 2009. [ 12 ] The Nunavut Court of Justice conducts regularly scheduled sittings in Baker Lake every 7 or 8 weeks throughout the year.

[ 13 ] On December 1, 2009, however, the DNA results had still not come back, so the applicant’s case was adjourned (for election) to the next sitting of the Court on February 9, 2010. [ 14 ] On February 10, 2010, disclosure was complete and the applicant elected to be tried by a judge and jury with a preliminary inquiry.

The preliminary inquiry was fixed for April 21, 2010, at the next regular sitting of the Nunavut Court. [ 15 ] On April 21, 2010, the applicant was committed to stand trial, and the case set, in normal course, to the next Assignment Court in Iqaluit, May 6, 2011, to set a trial date (for trial by jury in Baker Lake). [ 16 ] On May 6, 2010 and June 10, 2010, the case was spoken to in Assignment Court (it was moved from May 6th to June 10th, because no transcripts from the prelim had been prepared). [ 17 ] On June 10, 2010, the jury trial was fixed for April 5, 2011, in Baker Lake (the following spring). [ 18 ] On April 5, 2011, however, the trial did not proceed as the bailiff had not served enough jury summonses to make up a panel, and there were serious irregularities respecting service of the few prospective jurors who did attend. [ 19 ] I pause to note the efforts of both the trial judge and counsel in attempting, despite these difficulties, to get a jury empanelled so that the trial could go ahead. [ 20 ] The trial judge cancelled the trial and the case was set to the next Assignment List, May 2, 2011. [ 21 ] On May 2, 2011, the case was again spoken to in Assignment Court, and a new trial date fixed for March 20, 2012, in Baker Lake. [ 22 ] I pause to make note (and some observations) respecting this Assignment List (May 2, 2011). [ 23 ] During this May 2nd Assignment Court, Defence counsel advised (through an agent) that his first available date was February 27, 2012. [ 24 ] There is nothing on the record to indicate, however, whether any earlier trial dates (prior to February 27, 2012) were available, nor is there anything on the record indicating the Crown’s availability for any date prior to February 27, 2012. [ 25 ] The record shows only that March 20, 2012, was a suitable trial date to both Crown and Defence. [ 26 ] I am well aware, however, of the practice and protocols of Assignment Court.

Normally, an exchange of dates is e-mailed between the Administrator, Court Scheduling and counsel (for both Crown and defence). [ 27 ] Thus, when the Assignment Court opens, both the Court and counsel have a general idea as to when a trial might be set in accordance with, (1) the dates which the Administrator, Court Scheduling has said are available, and (2) the dates upon which counsel have confirmed their own availability.

It is within this context that a trial date is “negotiated.” [ 28 ] All counsel practicing in Nunavut are aware, particularly when awaiting dates from the Administrator, Court Scheduling for jury trials, that their jury trial will be fixed, likely, sometime with a year from the Assignment Court.

[ 29 ] This has to do, not only with the logistics of a jury trial in a particular community, but also with sensitivity to communities in fixing dates for jury trials, as well as the limited resources of the Court. I will discuss this in more detail below. [ 30 ] The point worthy of note here, however, is simply that while Defence counsel – in an individual case – may well be available for trial soon after the Assignment Court (say, for example, a few months down the road), this is only one variable assessing whether, at the end of the day, an accused’s s. 11 (

b) Charter rights have been violated by delay. [ 31 ] So, in this case, even if Defence counsel had been available much earlier than his February 2012 announced date, it is, frankly, doubtful that the eventual trial date, and despite the fact that it was a second trial date, would have been any different than the one chosen, namely March 20, 2012 (particularly when the applicant was not in custody). [ 32 ] Approximately a month or so prior to the scheduled trial date of March 20, 2012, it became evident that there was a problem with Court resources: no judge was available to conduct the jury trial. [ 33 ] By co-incidence, and around the same time that no judge could be found to preside at the Applicant’s trial, the federal government had addressed the resource-strapped Nunavut Court of Justice by increasing the judiciary (from four to six resident judges). [ 34 ] This ‘fix’ was, however, so recent, that the two newly appointed justices could not be expected to conduct a criminal jury trial so shortly after being appointed. [ 35 ] So, with no judge available to conduct a trial on March 20, 2012, the applicant’s case would again need to be brought forward to Assignment Court, in order that a new trial date could be fixed. [ 36 ] The case was addressed in Assignment Court on March 5, 2012, and again, on April 2, 2012.

Eventually, on April 2, 2012, the trial date was fixed for November 27, 2012. [ 37 ] I pause, however, to make note (and some observation) respecting these two Assignment Court appearances (March 5th, and April 2nd, 2012). [ 38 ] The record shows that the judge presiding at both appearances was acutely aware that he was now about to fix a third trial date, and that he expected the parties to make accommodation for this. [ 39 ] The Court had dates available for trial in both May and June 2012, a short couple of months down the road respectively from the March 5th and April 2nd appearances.

Unfortunately, however, counsel was not able to accommodate these dates. [ 40 ] In fact, as we shall see, below, the trial judge actually adjourned the case from March 5th until April 2nd precisely to allow for Defence counsel to make accommodation for a trial date in June – a short ten weeks down the road. [ 41 ] At the March 5, 2012 Assignment Court, the situation was as follows: - The Defence was available to proceed on May 27, 2012. The Crown, however, was not available on that date.

Unfortunately the reason why the Crown was not available is not discussed on the record (neither at this appearance nor at the next April 5th appearance). - The Crown was available to proceed on June 25, 2012. The Defence, however, was not available on that date. The reason that Defence counsel was not available was because of Legal Aid court circuit commitments.

[ 42 ] I pause to note that Defence counsel on March 5th, (Legal Aid staff counsel) had taken over the applicant’s file from the applicant’s first lawyer (private counsel retained by Legal Aid) only shortly before the March 5th appearance. This transition, however, was (and continues to be) both efficient and seamless.

The applicant’s first lawyer is now back in the picture; he argued this motion before me and will represent the applicant at trial. [ 43 ] The Crown (at this March 5, 2011 Assignment List) also advised that they were available for dates in October and November. [ 44 ] The presiding judge strongly encouraged Defence counsel’s employer (Nunavut Legal Aid) to free her from circuit commitments for the week of June 25th in order that the trial might proceed, indicating otherwise it may be that the applicant had effectively waived his 11 (

b) Charter rights to the next available date. [ 45 ] In response, Defence counsel was clear that she was not waiving any 11 (

b) Charter rights.

But she agreed to an adjournment for another month until the April 2nd Assignment List while she enquired as to whether Nunavut Legal Aid might be able to free her from circuit commitments on June 25th so that the trial might proceed then. [ 46 ] The Court reserved June 25, 2012, as a tentative trial date pending the availability (based on Legal Aid’s position) of Defence counsel. [ 47 ] At the April 2, 2012, Assignment Court, the situation was as follows: - Defence counsel advised (through an agent) that Legal Aid was not in a position to reassign counsel in order that she might be available to conduct the trial on June 25, 2012. - Defence counsel also advised that she was available in July, August, September, and November, but not in October (as noted, above, the Crown had noted availability in October). - The tentative trial date of June 25, 2012, was set aside and the Applicant’s case fixed for trial on November 27, 2012, for trial by judge and jury, in Baker Lake. - The defence also advised that they would be bringing a s. 11 (

b) Charter motion [ 48 ] I pause to note that the applicant’s motion was eventually file in August.

The Crown responded in September (after transcript of the various appearances had been made available) and the matter was set to for argument on the motion in November at Special Criminal Chambers. [ 49 ] The presiding judge (at this April 2, 2012 List) expressed dismay that Legal Aid was not prepared to make a reassignment of circuit counsel in the Kivalliq region in order to facilitate the proposed June 25th trial date. [ 50 ] The judge indicated as well that any delay beyond June 2012 may well, at the end of the day, be the responsibility of the Defence. [ 51 ] The judge made further observation that in Nunavut lawyers are routinely brought in by Legal Aid to free trial counsel from circuit commitments in order to accommodate their availability for jury work. [ 52 ] Finally, the judge requested that counsel for the Defence make the Court’s concerns know to Nunavut Legal Aid.

In response, counsel advised that these concerns had previously been conveyed to Legal Aid after the last Assignment appearance, on March 5th.

[ 53 ] This then is the chronology of the applicants’ case; the trial date remains fixed for November 27, 2012. III. ANALYSIS A. The Governing Law [ 54 ] It is well settled law that there are a number of factors which I must examine when considering whether an Applicant’s s. 11 (

b) Charter rights have been violated. These criteria (confirmed in Askov, Morin, and Godin} are as follows: 1. The length of the delay 2. The waiver of any time periods by the Applicant 3. The reasons for the delay, including a. Inherent time requirements of the case b. Actions of the accused c. Actions of the Crown d. Limits on institutional resources, and e. Other reasons for the delay 4. Prejudice to the accused B. Length of the Delay [ 55 ] The total time between the laying of the charge and the current trial date is 40 months (3 years, 4 months).

The Applicant has thus met the threshold standard of showing that this amount of delay is sufficient to warrant inquiry by the Court. [ 56 ] In examining the length of the delay, I do not restrict myself to the period of time beyond the normal time it would take the case to complete. In other words, I do not simply ask whether this latter or ‘additional’ period of time takes the case “over the top” in terms of an accused’s 11 (

b) Charter rights. [ 57 ] Rather, I consider the additional period of time within context of the entire period of delay – from ‘charge’ to ‘trial’ – in making the ultimate determination as to whether an accused’s 11 (

b) Charter rights have been violated. [ 58 ] This approach takes into account that an accused suffers stigmatization simply from the time the charge is laid.

An accused’s security interest is at stake from the moment he is charged (whether we call this ‘inherent’ prejudice or ‘inferred’ prejudice, is not important). [ 59 ] This contextual approach to the entire period of delay is most appropriate where an accused is able to establish actual prejudice by reason of the delay; for example to his liberty interest if he is in custody (or subject to onerous bail conditions), or to his fair trial interest if he is able, for example, to identify an evidentiary problem because of the delay. [ 60 ] Further, as the Supreme Court said in Morin: It is axiomotic that some delay is inevitable.

The question is at what point does the delay become unreasonable? The general approach to a determination of whether the 11 (

b) right is not a mathematical or administrative formula within which a

prosecution must be completed; but by a judicial determination balancing the interests which the

section is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of the delay. {para 31} [ 61 ] In attempting to answer this question the Court makes it clear that this is also a contextual exercise. The length of the delay must be viewed within the context of the reasons for the delay. C. Waiver of any time periods by the applicant (accused) [ 62 ] There are no waivers by the applicant of his s. 11 (

b) Charter rights. [ 63 ] The second trial date (March 20, 2012) was fixed at the Assignment Court of May 2, 2011. At that time (on May 2nd), counsel for the applicant (who was also trial counsel at the time) advised (through his agent) that his first available date was February 27, 2012. [ 64 ] I do not, however, accept the Respondent Crown’s position that this constitutes a waiver by the accused of his s. 11 (

b) Charter rights and that the subsequent delay of some ten months (until February 27, 2012) is attributable to the Defence. [ 65 ] In other words, as noted earlier, I am well aware of the practice in Assignment Court respecting the give and take between Counsel and the Court in picking trial dates. [ 66 ] In argument before me, counsel for the applicant said that he provided this date to his agent after ascertaining what trial dates were available.

Counsel said that this February 2012 date was (or likely was) chosen from among available dates as a result of the normal exchange of available dates between counsel and the Court. I accept counsel’s position. [ 67 ] Further, there is no information in the transcript which would indicate otherwise – namely, that earlier dates than February 2012 were available, or that the Crown was available earlier.

It is simply speculative to suggest that earlier dates than February were available. [ 68 ] The information given to the Court by Defence counsel on May 2, 2011 (about his availability in February of 2012), does not meet the strict criteria of implicit waiver as established by the authorities. [ 69 ] Nor, at the Assignment Lists of March 5, 2012 and April 2, 2012, does subsequent Defence counsel’s failure (or inability) to clear her

schedule in order to facilitate a June 2012 trial date constitute a waiver of the accused’s s. 11 (

b) Charter rights. Counsel was clear on the record (at both Assignment Courts, March 5th and April 2nd) that there was no waiver ; in fact, she advised (through an agent on April 2nd) that a s. 11 (

b) Charter motion would be made. [ 70 ] The question of whether the five month delay between June 25, 2012 (when the defence was not available), and November 27, 2012 (the eventual trial date), should be attributable to the applicant is, however, a different matter – and one where the distinction between ‘waiver’ of delay and ‘responsibility’ for delay is of little practical import. D.

Reasons for the delay [ 71 ] In examining the reasons for delay, however, I must be cautious of a simple ‘reductionist approach’ – that is, an analysis which focuses primarily on responsibility or ‘blame’ for piecemeal chunks of delay. Such an approach, as the Court noted in Godin is “to lose sight of the forest for the trees.”

[ 72 ] While an examination of the reasons for delay necessarily involves looking at the breakdown of the time periods in the case, it must be done within a principled context, with focus on the balancing of interests noted in Morin. [ 73 ] In breaking down the portions of this case – in terms of reasons for the delay – I find that the delay is attributable as follows: From the total delay: 40 months - Inherent delay 10 months - Actions of the accused 5 months - Actions of the Crown 3 months - Institutional delay 22 months (i).

Inherent time requirements of the case [from July 16, 2009 to June 10, 2010, 10 months] [ 74 ] Inherent delay is the time it takes before a case is set for trial. [ 75 ] In this case, that time period is between the time when the charge was laid (July 16, 2009), and the time when the case was first set for trial (at the Assignment Court of June 10, 2010), roughly ten months. [ 76 ] The first two months of this delay takes into account the time that the accused waited for his first appearance (from July 16th, until September 29th). [ 77 ] The next four months of the delay takes into account the time that the applicant was required to wait for a DNA report (from September 29th until February 9th).

Although this case is not a complex one, the DNA report was an important piece of disclosure in the context of a sexual assault charge. [ 78 ] The DNA results were not available until the applicant’s appearance on February 9, 2011, at which time he was able to make an informed election and had his preliminary hearing fixed for April 5, 2010. [ 79 ] The Nunavut Court of Justice makes fairly frequent visits to Baker Lake, approximately every seven or eight weeks. [ 80 ] So, while delay in the production of the DNA report likely delayed the preliminary hearing, such delay would have minimal (if any) effect on the eventual trial date.

Further, in my view, by both northern and national standards, the DNA report in this case was produced within a fairly efficient time frame. [ 81 ] The applicant had chosen a two stage trial process which required a preliminary inquiry. [ 82 ] The last approximate four months of delay takes into account the time that the applicant was required to wait from the time a date was fixed for his preliminary hearing until a trial date was fixed (from February 9th, until June 10th). [ 83 ] The inherent delay in this case is not remarkable. (ii). Actions of the Accused [from June 25, 2012 to November 27, 2012, 5 months]

[ 84 ] The applicant was available for trial on May 21, 2012, but the Crown was not available. Accordingly, the delay from March 5, 2012 until May 21, 2012, is attributable to the Crown. [ 85 ] The approximate five month delay afterwards, between June 25th, and the eventual trial date of November 27th, is, however, attributable to the Applicant. [ 86 ] This is because Legal Aid was not prepared to free the applicant’s lawyer from circuit commitments on June 25, 2012, which would have allowed the trial to proceed on that date. [ 87 ] I do not make a general criticism of Nunavut Legal Aid.

Far from it, we are fortunate to have a fine and comprehensive Legal Aid plan in Nunavut. [ 88 ] This is, however an important operational issue. The Court is sensitive to both the personal and professional obligations of counsel appearing before it.

And certainly, as Justice Cromwell pointed out in Godin, defence counsel (whether privately or publicly retained) need not hold him or herself out “in a state of perpetual availability.” [ 89 ] In my view, however, Legal Aid should, in future cases where a simple circuit assignment change is necessary to facilitate a jury trial, be prepared to make such a change – or at least explain why it cannot be done.

Otherwise, counsel may expect the Court to do so by fixing the jury trial as a priority over counsel’s circuit commitments. [ 90 ] I pause to note that it matters little in this case that the applicant’s counsel was available for a trial during the summer of 2012, July, August, and perhaps September. The applicant, in choosing trial by jury in his community, is constrained by the Court’s sensitivity to life in the communities in fixing dates. In this regard, the Court was already ‘pushing the envelope’ by offering the accused a date in late June. (iii).

Actions of the Crown [from March 5, 2012 to May 21, 2012, 3 months] [ 91 ] This delay is attributable to the Crown. Unfortunately, the transcripts of the Assignment Court appearances on March 5th and April 2nd, do not show why the Crown was unavailable. [ 92 ] However, in light of my comments above, respecting Legal Aid and Defence counsel’s availability, I would expect the Crown to be similarly prepared at Assignment Court (particularly given their greater resources). (iv).

Limits on institutional resources [from June 10, 2010 to March 5, 2012, 22 months] [ 93 ] This is the period between the Assignment Court on June 10, 2010 (when the first trial date was fixed), and the Assignment Court on March 5, 2012 (when the third trial date was fixed). [ 94 ] In fairness, counsel for the applicant (both in his Briefing Memorandum, as well as before me in argument) does not take issue with the delay between when the accused was charged (July 16, 2009) and the first trial date (April 5, 2012).

This is a period of approximately twenty months, with ten months of inherent delay, followed by another ten months after Assignment Court awaiting trial. [ 95 ] In his Briefing Memorandum, the applicant points out that the Morin and Godin guidelines, when applied in two stage proceedings, would allow for up to eighteen months of delay between ‘charge’ and ‘trial.’ The applicant further acknowledges the well settled law that the guidelines set out in Morin and Godin need to be adjusted to local conditions – and in particular to Nunavut’s unique conditions. [Applicant’s Briefing Memorandum; page 2 (of unnumbered pages), last para.]

[ 96 ] The applicant’s complaint is not with this initial twenty month period between ‘charge’ and the first trial date per se. Rather it is a much broader plea. [ 97 ] The applicant says first, that the additional twenty month delay beyond the first trial date is itself problematic in terms of his client’s s. 11 (

b) Charter rights, and second, that the overall impact of the additional twenty months is to leave the accused with an unacceptable forty month delay in coming to trial. [ 98 ] Ultimately, the applicant’s position must be assessed, as stated above in Morin, by a judicial determination balancing the interests which the

section {11 (b)} is designed to protect against the factors which either inevitably lead to delay or are otherwise the cause of the delay. [ 99 ] In dealing, however, with institutional delay and limited institutional resources), it is important to note the particular difficulties, unique to Nunavut, when it comes to scheduling generally in communities outside Iqaluit. These difficulties have been referenced in a number of leading Nunavut cases dealing with s. 11 (

b) of the Charter , namely, Pauloosie, Kingwatsiak, and Wiseman {involving

summary proceedings}. [ 100 ] Respecting jury trials in particular, the scheduling difficulty has been compounded in recent years with the proliferation of serious violent crime involving homicide.

It is not just the increasing number of jury trials that must be accommodated with a reasonable time but the ever increasing length and complexity of the trials. [ 101 ] In order to ensure community participation (and support) for trial by jury in the communities, the Nunavut Court is sensitive (when fixing dates) to community life. [ 102 ] Even the ‘shortest’ jury trial of 3 or 4 days is a serious disruption to community life – for example 200 people might be summoned for jury duty in a community of 1500. [ 103 ] Obviously much advance notice is important, but the Court is also sensitive to the needs of the communities – the cycle of life involving traditional pursuits which must be respected and accommodated. [ 104 ] For example, many people are absent from the communities during the summer months of July, August, and part of September, either camping for extended periods or enjoying shorter trips (a day, two days, three).

Although school resumes in most communities in August, there are still large segments of the population ‘out on the land.’ Similarly, in the spring during May and June many hunters are out, after the long winter, often for extended periods, and sometimes with their families (schools are let out in June precisely for this purpose). [ 105 ] The Court will

schedule jury trials for June if necessary, but often with hesitation; indeed, the applicant was offered (but declined) a June date. [ 106 ] The logistical problems associated with scheduling jury trials in the communities has been well documented. Judicial and support staff resources are already scarce (the Nunavut Court routinely runs two and sometimes three non-jury Courts per week). Counsel’s schedules need to be accommodated (and there is often a shortage of both Crown and defence counsel).

Hotels can sometimes be problematic for dates which the Court would like to use (they might easily be full-up with construction workers, year round). It is often necessary to accommodate the schedules of southern expert witnesses and court reporters, as well as the ever dwindling core of qualified interpreters before a “court party” can even be ‘put together’ to

schedule a trial. Added to this, of course, is the unpredictability of weather - when the only access to the communities is by plane, bad weather or poor visibility can result in the cancellation of a trial and nullify all the effort in putting the date together in the first place. [ 107 ] Yet, despite all this, the Nunavut Court continues to bring ‘justice to every man’s door,’ by conducting jury trials in the community where the alleged offence occurred.

[ 108 ] It is no surprise, therefor, considering the number of cases which must be scheduled, that the time line between “Assignment List” and “Trial date” is realistically often one year; sometimes less for a person in custody, but often times more for more complicated cases. [ 109 ] Thus, the institutional delay in this case of ten months between the Assignment Court of June 10, 2010, and the first trial date on April 5, 2011, is not particularly remarkable.

The issue, as the applicant says, is the impact of this institutional delay within the context of the overall delay. [ 110 ] Further, the delay between the second Assignment Court on May 2, 2011, and the second trial date which was fixed for March 27, 2012, is a result of some of the very same legitimate variables which I have just noted, above. [ 111 ] Finally, and despite these difficulties, the Court was prepared and able, when faced with fixing a third trial date, to set the trial for either May 21, 2012 or June 25, 2012, only four months down the road from the March 5th Assignment Court.

Counsel, however, could not accommodate these dates. E. Prejudice to the accused [ 112 ] The applicant’s counsel says that his client has suffered substantial prejudice, both inferred and actual. [ 113 ] The law says that prejudice is inferred (and an accused’s security interest affected) from the fact of being charged. The stigmatization of being charged is more, however, than just a matter of inferred prejudice – it is something real, which all accused feel, and which gets worse the longer a case takes to finish. [ 114 ] I do not agree, however, that the applicant has suffered substantial actual prejudice.

The limitations on his liberty interests are minimal, and his failure to take any action to change his bail conditions must be considered in this assessment. [ 115 ] Nor is there any issue respecting the applicant’s fair trial interests in terms of delay. [ 116 ] The prejudice to the accused caused by the delay is not of such a magnitude as to warrant the extreme remedy of a stay of proceedings.

It must be balanced against society’s interest in having a very serious charge decided on the merits. [ 117 ] I pause to note, although it has no legal relevance the issue before me, that throughout the Pre-Trial Hearings in the matter, the applicant’s counsel has been clear about his client’s position respecting the charge. The accused says the incident never occurred at all and that he is innocent. Ironically, it seems the applicant might have an interest in being publicly vindicated. IV.

CONCLUSION [ 118 ] The institutional delay of twenty two months in the case is unfortunate but not of itself extreme given the context of scheduling two dates for a jury trial in Nunavut. It is the additional ten months of inherent delay in getting the case initially to trial, together with the final eight months of delay attributable to counsel, which bring us to a total delay of some forty months. [ 119 ] This overall delay of some forty months, even when five months of this time is attributable to the applicant, although disturbing, must be viewed in context as well.

In this case, that context includes society’s interest in having a very serious charge (alleging forced sexual intercourse by a mature man upon a sixteen year old girl) decided on the merits.

[ 120 ] In this case, the applicant has not shown, on a balance of probabilities, that his right to be tried within a reasonable time, as guaranteed by s. 11 (

b) of the Canadian Charter of Rights and Freedoms , has been violated such that a stay of proceedings is justified under s. 24 (1) . Dated at the City of Iqaluit this 19th day of November, 2012 ___________________ Justice N. Sharkey Nunavut Court of Justice