R. v. I.N., 2018 NUCJ 9

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. I.N., 2018 NUCJ 9 Date: 20180409 Docket: 17-15-72 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: I.N. ________________________________________________________________________ Before: The Honourable Mr. Justice Paul Bychok Counsel (Crown): Gary Magee Counsel (Accused): Patrick Smith Location Heard: Iqaluit, Nunavut Date Heard: February 9, 2018 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) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

DISCLAIMER PAGE Anonymized Judgment Disclaimer: This judgment has been anonymized to comply with legislative requirements or at the discretion of the authoring Justice to protect vulnerable parties. Letters have been assigned at random.

I. BACKGROUND [ 1 ] The accused, I.N., is charged with two sexual offences alleged to have happened in Coral Harbour between October 2, 2014 and June 1, 2015. Defence counsel, Patrick Smith, has filed an application pursuant to sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms . [1] He seeks a judicial stay of proceedings because he says the accused’s right to a trial within a reasonable time has been violated. The Crown prosecutor, Gary Magee, opposes the application. [ 2 ] The accused was scheduled to stand trial on March 5, 2018. Given the urgency of this application, I advised counsel that I would communicate my decision early the following week with detailed written reasons to follow. These are my written reasons for decision. II. FACTS [ 3 ] The basic facts of the case are not in dispute.

The accused was arrested on September 8, 2015 and was released. The police swore the Youth Criminal Justice Act [2] Information on December 21, 2015. The next court circuit to sit in Coral Harbour was on February 29, 2016. This was a five-month 22-day delay from the date of his arrest. The accused pled not guilty that day and his trial was scheduled for September 28, 2016. This resulted in a seven-month delay. On the scheduled September 28 date, the trial was adjourned at Defence request until March 6, 2017. This resulted in a five-month seven-day delay.

The March 2017 circuit to the community was cancelled due to a blizzard. As a result, the trial was rescheduled to the following Coral Harbour circuit on September 20, 2017. This caused a further six-month 15-day delay. I.N. was scheduled to stand trial on March 5, 2018. The delay in bringing this case to trial totals about 30 months. III. ISSUE [ 4 ] This Charter application turns on whether the delay in bringing this

summary conviction youth trial has been unreasonable. In my respectful view, the delay in the circumstances of this case has been reasonable. IV. THE LAW ON PRE-TRIAL DELAY [ 5 ] The new law on pre-trial delay post- Jordan [3] may be summarized as follows.

The Court first determines the length of total pre- trial delay. [4] The judge must then subtract delay either waived or caused solely or directly by the Defence. [5] 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)”, [6] the delay is presumed to be unreasonable. In Nunavut, [7] the remaining delay of more than 30 months for cases proceeding by an indictment or after a preliminary inquiry is presumed unreasonable. The ceiling for

summary charges in provincial or territorial court is 18 months. [8] Past the 18 months mark, as in this case, it is up to the Crown to justify that delay. [9] [ 6 ] 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. [10] Two examples of exceptional circumstances listed in Jordan are discrete events and cases which are “particularly complex”. [11] [ 7 ] In R v Anugaa , I ruled that the Jordan category of exceptional circumstances must be given a broad and liberal

interpretation grounded in Nunavut’s reality. [12] The unique cultural circumstances and exceptional challenges found in Nunavut constitute a third

Jordan subcategory of exceptional circumstances. [13] I will say more about this issue in my analysis of Defence counsel’s submissions. V. POSITIONS OF THE PARTIES [ 8 ] I heard oral argument in Iqaluit on February 9, 2018. The lawyers also had provided the Court earlier with written submissions. [ 9 ] Mr. Smith submitted that I ought to reconsider my recent decision in Anugaa concerning pre-trial delay. He stated that the creation of a third category of exceptional circumstances justifying delay will create a two-tier set of Charter protections disadvantaging Nunavummiut. [ 10 ] Mr.

Smith also encouraged the Court to follow J.M. , [14] where the trial judge ruled there should be lower presumptive ceilings on criminal charges in Youth Court. Mr. Smith stated that, however one may attribute the reasons for delay, the remaining delay exceeds the presumptive ceiling and is unreasonable. [ 11 ] Mr. Magee submitted that 159 days of delay were attributable to the Defence and that 364 days of delay were exceptional. Mr. Magee said the remaining pre-trial delay is 12 months and 21 days, which is well below the presumptive ceiling. He said the Defence application should be dismissed. VI.

ANALYSIS [ 12 ] I will address in turn each one of Mr. Smith’s positions. A. Has R v Anugaa created a two-tier regime of Charter protections? [ 13 ] In my respectful view, Anugaa does not create a two-tier set of Charter protections. The Charter is part of Canada’s constitution. It enshrines the rights and freedoms of Canadians from coast to coast to coast. Anugaa did not create a new and different Charter regime for Nunavut. [ 14 ] As Mr. Smith acknowledged, the majority in Jordan specifically stated the categories of exceptional circumstances are not closed.

This is what the Jordan majority said: It is obviously impossible to identify in advance all circumstances that may qualify as “exceptional” for the purpose of adjudicating a s. 11 (

b) application. Ultimately, the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience. The list is not closed. [15] [ 15 ] This statement, I believe, recognizes that we do not live in an ideal world. In Nunavut, blizzards not only happen, they are a way of life. Planes go mechanical. Witnesses and accused persons are often absent on medical travel. Seasonal hunts are a part of the traditional way of life for many Nunavummiut. The expanded category of exceptional circumstances in Anugaa merely recognizes and respects that reality.

This Court applied the Jordan analysis in Anugaa . [ 16 ] I also do not agree with Mr. Smith that Anugaa shifts the burden of delay onto the backs of accused persons. There is no culture of delay in the Nunavut Court of Justice. Despite innumerable challenges, this Court has an enviable and consistent record of timely case disposition. [16] Therefore, this part of the Charter application fails. B. R v J.M. and a lower presumptive delay ceiling in Youth Court [ 17 ] I turn now to Mr. Smith’s argument that I ought to follow J.M . and recognize a lower presumptive Jordan ceiling in Youth Court. I cannot agree.

J.M. is a trial-level decision of an Ontario court. It is not a binding precedent on a Nunavut judge. I also do not find the reasoning in that case to be persuasive.

[ 18 ] Judges of the Nunavut Court of Justice have always given priority to Youth Court matters, and we shall continue to do so. The Supreme Court in Jordan did not address the issue of pre-trial delay in Youth Court. Parliament has not legislated on the subject. Therefore, this argument, too, must fail. C.

Delay attribution [ 19 ] The majority in Jordan stated that judges ought not to indulge in micro-counting. [17] However, judges must still attribute delay. [ 20 ] The initial five-month and 22-day delay (the equivalent of 175 days) from arrest to first appearance arose because of the itinerant circuit court schedule. I attribute that delay to the new third Jordan sub-category of Nunavut exceptional circumstance, and I subtract it from the total pre-trial delay. [ 21 ] The seven-month delay (the equivalent of 213 days) from plea to the first trial date in September 2016 resulted from the circuit court schedule.

I attribute that delay to the new third Jordan sub-category of Nunavut exceptional circumstance, and I subtract it from the total pre-trial delay. [ 22 ] The five-month and seven-day delay (the equivalent of 161 days) of the trial from September 2016 to March 2017 was caused by the Defence adjournment request. I attribute that delay to the Defence, and I subtract it from the total pre-trial delay. [ 23 ] The six-month and 15-day delay (the equivalent of 197 days) from March 2017 to September 2017 was caused by a blizzard. The blizzard was an uncontrollable and discrete exceptional event.

The resulting delay flowed from the circuit court schedule. I attribute that delay to the new Jordan sub-category of Nunavut exceptional circumstance, and I subtract it from the total pre-trial delay. [ 24 ] These deductible pre-trial delays total 746 days, and I subtract them from the total 910 days of delay. VIII. DECISION [ 25 ] Pursuant to Jordan , I am dealing with an 18-month presumptive pre-trial delay ceiling for these two

summary conviction offences. In my view, once the qualifying delay is properly deducted – that is, delay attributable to the Defence and the delays arising from discrete exceptional circumstances in the context of Nunavut – the net delay in this case is 910 less 746, which amounts to the net delay of 164 days. These 164 days of pre-trial delay fall well below the presumptive 18-month (about 540 days) ceiling. Therefore, the pre- trial delay in this case was reasonable in all the circumstances. [ 26 ] The Defence Charter application fails . Dated at the City of Iqaluit this 9th day of April, 2018 ___________________ Justice Paul Bychok Nunavut Court of Justice