R. v. Ford, 2021 NUCJ 7

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Ford, 2021 NUCJ 7 Date: 20210209 Docket: 18-18-120 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Norman Ford ________________________________________________________________________ Before: Madam Justice Cooper Counsel (Crown): B. Flight Counsel (Accused): M. Eaton-Kent Location Heard: Iqaluit, Nunavut Date Heard: February 5, 2021 Matters: Application for judicial stay of proceedings pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms REASONS FOR JUDGMENT (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section 486.4 of the Criminal Code , “any information that could identify the complainant or a witness shall not be published in any document or broadcast or transmitted in any way.”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 ] Norman Ford has brought an application for a judicial stay of proceedings on the basis that his right to be tried within a reasonable time pursuant to s.11(

b) of the Charter of Rights and Freedoms has been infringed. II. BACKGROUND [ 2 ] On June 19, 2018, an Information was sworn charging the accused with a sexual assault alleged to have occurred between January 1, 1987 and June 30, 1988. The charge is scheduled to proceed to trial at the next circuit in Rankin Inlet on March 8, 2021. III. PROCEDURAL HISTORY [ 3 ] Due to the lapse of time between the date of the alleged offence and the swearing of the Information, the Crown was required to proceed by indictment. [ 4 ] The accused elected to be tried by a judge with a jury and elected to have a preliminary hearing.

That election was made on September 24, 2018. The preliminary hearing was held on February 12, 2020, and the accused was committed to stand trial. On August 10, 2020, the Crown re-elected to proceeding summarily, with the consent of the accused. [ 5 ] A detailed synopsis of the procedure of this matter through the system is attached as Appendix “A”. IV. LAW [ 6 ] The Canadian Charter of Rights and Freedoms states: s. 11 Any person charged with an offence has the right … (

b) to be tried within a reasonable time

[ 7 ] The Supreme Court of Canada in R v Jordan , 2016 SCC 27 established that for indictable matters with a preliminary hearing, any delay beyond 30 months is presumptively unreasonable. [ 8 ] In an application such as this the court is directed to determine the total length of the delay and deduct from that any delay attributable to the Defence.

The remaining time is the “net delay”. [ 9 ] If the net delay is below 30 months, the Defence bears the onus of satisfying the court that the delay is unreasonable, and the charge should be stayed. [ 10 ] If the net delay is beyond the 30-month ceiling, the delay is presumed to be unreasonable. The Crown may rebut this presumption of unreasonable delay by establishing that exceptional circumstances were the cause of some of the delay, sufficient to bring the remaining delay below 30 months. V. ANALYSIS [ 11 ] Defence and Crown do not agree on the delay that is attributable to the Defence. A. Defence delay (

i) August 14 – September 24, 2018: [ 12 ] The accused was in custody on unrelated matters in June 2018. He was in court in Rankin Inlet on those matters when he was charged with the offence in this matter. His first appearance date was August 14, 2018. On that date he was not present in court. He was in custody in southern Canada and had not been brought to the community for his first appearance. Counsel advised that they had been in contact with the accused and needed more time to “straighten things out”.

The matter was adjourned to September 24, 2018, for accused election. [ 13 ] The Defence submits that the failure to bring the accused to court for his first appearance made it impossible to get instructions from him and it is for that reason an adjournment was required. [ 14 ] The Crown submits that it is clear from the record that counsel had contact with the accused and was able to communicate with him.

They submit that the delay from August 14 to September 24, 2018 is attributable to the Defence. [ 15 ] The process prior to the first appearance of an accused highlights some of the tensions between legal principles that are at play in our system. [ 16 ] The legal services plan in Nunavut provides almost universal coverage for criminal matters. The lack of resident counsel coupled with the high costs of travel and accommodation mean that retaining counsel privately is not an option for most accused.

Consequently, almost all accused appearing on circuit criminal dockets are represented by legal aid. [ 17 ] There are three legal clinics, one in each of the three regions, and each staffed with full time counsel. One of the clinics is in Rankin Inlet. [ 18 ] The practice has developed that disclosure on all matters on the docket is provided to the Legal Services Board (LSB) directly by the Public Prosecution Service of Canada (PPSC). This cooperative arrangement has served the territory and, most importantly, accused persons and complainants, well.

The agencies and lawyers involved are to be commended for their work in this regard. However, there is the potential for issues to arise (for example, is there a breach of privacy interests by providing disclosure to counsel who is not yet

retained). [ 19 ] The nature of the court process in the territory has led to accused persons not taking the initiative and seeking out counsel upon being charged. Generally, they wait until the first day of a court circuit or, perhaps, a few days before court when the lawyer arrives in the community. I mention this because depending on the community, there can be a lengthy delay between the charge date and the first appearance date. In the context of a delay application who is responsible for this?

Is there some responsibility on an accused to contact counsel, request disclosure, and have some decisions made at the first appearance? [ 20 ] In the context of the matter before me, I am advised that disclosure was provided to the Rankin Inlet legal aid office on July 16, 2018.

Having been in court in June on unrelated matters, it is clear that the accused had an ongoing relationship with LSB. [ 21 ] The position taken by the Defence that the delay is attributable to there not having been a removal order issued for the accused is in direct contrast with the position taken by counsel on the August 2018 circuit. [ 22 ] On August 13, 2018, the matter was spoken to and adjourned to the following day and the following exchange occurred: THE CLERK: So does he need a removal order then? MR. KEMPT: He's not going to be appearing. I'll be appearing as agent for him regardless THE CLERK: Okay.

HER WORSHIP: So the matter of Norman Ford will be put over to August 14 at 9:30. Mr. Kempt has spoken on his behalf. (transcript, page 1, lines 18-27) [ 23 ] The practice in this jurisdiction is to not transport accused persons to the community for court if they are in custody outside of the community unless substantive progress is going to be made on the file. This practice is often preferred by accused persons as, for the most part, they do not like to be detained in RCMP cells (which, in most communities, is where they are held).

Elections, pleas, setting dates, is frequently done by counsel, without the accused being present, or with the accused present by telephone or video. [ 24 ] The accused in this matter was in custody at the time of the August 2018 appearance. He did not have the right to appear in person. But for the representations made by counsel on August 13, 2018, he would have appeared remotely. Disclosure had been provided the month prior.

The adjournment was not required to obtain instructions; it was required to assign counsel. [ 25 ] Counsel who was in court on August 14, 2018 had spoken with the accused and indicated that counsel was yet to be assigned and that the accused had an unrelated matter which also required counsel be assigned. Counsel requested the matter go to September 24, 2018 although two earlier dates were provided (August 27 and September 10). [ 26 ] Defence Counsel is entitled to time to review disclosure and take instructions. However, that was not the purpose of the August 14, 2018 adjournment.

The purpose of that adjournment was to assign counsel. This is a relatively straight forward case with few witnesses and little complexity. Reviewing disclosure and taking instructions would not have required much time. [ 27 ] I find that the Defence is responsible for the delay from August 27 to September 24, 2018, a delay of 29 days. (ii) March 2 - March 16, 2020 [ 28 ] The preliminary hearing was concluded on February 12, 2020 and the accused committed to stand trial. The matter was adjourned

to March 2, 2020 assignment court for the purpose of setting a trial date. [ 29 ] At the March 2, 2020 assignment court counsel indicated that a date could not be set as they were considering what pre-trial applications would be brought. The matter was adjourned to March 30, 2020. [ 30 ] On March 16, 2020, the territory went in to lock down because of the COVID-19 pandemic.

Regular court operations were suspended so the March 30, 2020 court appearance did not proceed. [ 31 ] Crown submits that the delay from the March 2, 2020 court appearance to the March 16, 2020 suspension of regular court operations is attributable to the Defence as it had not yet filed a s. 276 application despite having formed the intention to do so (and despite having already done so at the preliminary hearing). [ 32 ] Defence submits that the Crown was not ready to set a trial date as it required time to decide what experts or applications it might make. [ 33 ] It is difficult to attribute delay for this period of time as it is not entirely clear what applications were under consideration.

The March 2, 2020 appearance indicate the Defence was considering a s. 276 application and a Corbett application. There was also reference to the calling of expert evidence, which I understand both Crown and Defence were considering at some point. [ 34 ] Given the state of the record during this time period I am unable to attribute delay to the Defence during this time period. (iii) June 1 – June 22, 2020 [ 35 ] This matter was in court on June 1, 2020. At that time Defence Counsel indicated he had not had communication with his client and did not have instructions.

Defence Counsel wanted the matter put over to August 19. However, it was adjourned to June 22, 2020. [ 36 ] This delay of 21 days is attributable to the Defence. (iv) August 31 – October 9, 2020 [ 37 ] The s. 276 application was filed on August 9, 2020 (more than five months after counsel stated on the record an intention to file such an application and after having done so for the preliminary hearing).

Precisely what transpired from the August 9, 2020 filing of the application to October 9, 2020, when the hearing was ready to be set, is not clear except to say that there was confusion and difficulty over providing both notice and counsel to the complainant for the purposes of the s. 276 application. Counsel are in agreement that this is delay the responsibility for which is shared by the Court, Crown, and Defence. [ 38 ] Twelve days of this delay is attributable to the Defence. [ 39 ] The total amount of delay attributable to the Defence is 62 days.

This leave 16 days beyond the 30-month ceiling provided for in Jordan and requires that I consider if there were any exceptional circumstances that contributed to the delay. VI. EXCEPTIONAL CIRCUMSTANCES [ 40 ] The Supreme Court of Canada in Jordan states that delay due to exceptional circumstances must also be deducted. Exceptional circumstances are those that are reasonably unforeseen or unavoidable and which cannot reasonably be remedied. The court speaks of two categories of exceptional circumstances: discrete events and particularly complex cases.

[ 41 ] With respect to this matter, there are two discrete events that must be considered: the unavailability of the complainant due to medical circumstances and the COVID-19 pandemic, both of which might be viewed as “discrete events”. A. Unavailability of the complainant (182 days) [ 42 ] The preliminary hearing in this matter was delayed twice because of the medical circumstances of the complainant. [ 43 ] The preliminary hearing did not proceed on the December 2018 circuit as the complainant, who resides in Iqaluit, was recovering from recent surgery.

The Crown requested an adjournment, which was granted, and the matter was adjourned to February 12, 2019, in Rankin Inlet. [ 44 ] At the February circuit the Crown sought another adjournment. The Crown advised that the complainant was undergoing a high- risk pregnancy and had been advised not to travel.

Although there was a May circuit in the community, Defence Counsel (not counsel on this application) preferred the matter go to the June circuit as he expected to be counsel on that circuit and wanted to ensure continuity of counsel (transcript, page 5, lines 14-20). [ 45 ] In discussing discrete events, the court in Jordan referred to medical circumstances, stating “...it is to be expected that medical or family emergencies (whether on the part of the accused, important witnesses, counsel or the trial judge) would generally qualify” (at para 72). [ 46 ] The medical circumstances of the complainant that led to her unavailability for the preliminary hearing were unexpected and not avoidable.

The medical circumstances were not of indefinite duration or chronic, rendering the complainant unavailable for the foreseeable future. In relation to the first adjournment, the medical circumstance was resolved once the complainant had completed the follow up from her surgery and was medically cleared.

In relation to the second adjournment, once the baby was born and the complainant recovered from the birth, she was able to travel. [ 47 ] I find that this is delay of 182 days is due to exceptional circumstances, bringing the time between charge and anticipated trial below the Jordan ceiling. [ 48 ] In the event I am in error in so finding, I will also consider the COVID-19 pandemic and whether that amounts to exceptional circumstances. B.

COVID-19 [ 49 ] Defence Counsel submits that the COVID-19 global pandemic which has shut down travel worldwide, closed businesses, depressed economies, and restricted the freedom of movement of populations throughout the world, to say nothing of the death toll, has not impacted the scheduling of this trial. This submission is incredible. [ 50 ] The pandemic has impacted court operations everywhere, including Nunavut. Generally speaking, the pandemic has slowed down court operations and has required an even higher level of cooperation amongst counsel and the court to move matters along.

Business as usual has not been an option. [ 51 ] The courts in Nunavut have been suspended twice, meaning that all court circuits were cancelled. Travel within the territory was not possible.

[ 52 ] Deputy judges, whom the court relies upon heavily, have not been able to travel into the territory. Further, many of them have had to reduce or terminate their service to the territory as they respond to pandemic circumstances in their own courts. This means they are not always available for remote hearings. Consequently, the six resident judges have covered all the court sittings. [ 53 ] In the fall of 2020, two of the resident judges took long term personal leave.

Strained judicial resources would not normally constitute an exceptional circumstance but because this reduction in judicial resources occurred during the pandemic, the court was not able to supplement its resident judicial pool with deputy judges as it normally would. Consequently, the number of courts that could sit in any particular week was reduced from six to four (Justice of the Peace court, Iqaluit court, and two circuit courts). The court is travelling to communities less frequently and, once there, the volume of cases is high. [ 54 ] COVID-19 did not affect only the resources of the judiciary.

The offices of both the Legal Services Board (LSB) and the Public Prosecution Service of Canada (PPSC) were closed for extended periods, and lawyers did not have ready access to files. They could not meet with clients or witnesses. LSB and PPSC also rely on counsel from outside of the territory who, until some time into the pandemic, were not able to travel to Nunavut. Throughout the numerous meetings LSB and PPSC have had with the judiciary to manage court matters during the pandemic, both agencies have acknowledged their capacity issues as well as those of the court during the pandemic.

Both agencies also acknowledged the pressure on the lawyers and the need for a proper break for them over the holiday season. The court also acknowledged this and, at the request of the bar, cancelled a court sitting in Iqaluit scheduled for early January. [ 55 ] The point of this is to highlight that the pandemic changed the work environment for both the courts and counsel. Priorities had to change. [ 56 ] Defence Counsel argues that the pandemic did not specifically impact this case.

For example, he submits that the March 16, 2020 closure of the courts did not impact the case because the Crown did not decide until July 2020 if it would bring any pretrial applications. The implication is that despite the territory wide lock down, the Crown is expected to have carried on with its work as usual. This is not reasonable and it invites the court to hold the Crown to a standard that the Defence bar was not able to meet. [ 57 ] The offices of both LSB and PPSC have been closed at various times during the pandemic.

Some lawyers went south, intending to see how things developed. [ 58 ] PPSC indicated that its lawyers did not have access to their office and could not readily access files, and that therefore it might take “some time” to get disclosure to Defence (email of March 23, Appendix B). [ 59 ] On March 31, 2020, legal aid offices in Nunavut issued a notice indicating that their offices “remained closed” to the public. Phone numbers were provided for those in need of assistance (see Appendix C). [ 60 ] Early in the pandemic, there was a great deal of uncertainty.

No one knew how long the pandemic might last, what its effects would be, and when or if court would be able resume as before. Given that correctional institutions are high risk environments due to the inability to physically distance, priority was given to reducing the pressures on the institutions. This meant that bail hearings, bail reviews, and sentencing proceedings where the accused was at a “time served” position were prioritized.

All of this work was done remotely, largely by telephone. [ 61 ] A trial for an out of custody accused (as the accused in this matter was by this time) was not prioritized, for good reason. As indicated, the first priority was to release those in custody who were at a point where they could be released.

Secondly, a trial where, upon conviction, an accused was likely to be sentenced to custody, was going to increase pressure on the jails and was better put over to a time where there was more certainty regarding the pandemic. [ 62 ] We are now almost one year into the pandemic and we are, with limited exceptions, unable to do jury trials because for the most part the communities do not have facilities that are able to accommodate the necessary COVID-19 protocols for physical distancing.

[ 63 ] The accused in this matter elected to be tried by a judge with a jury. [ 64 ] There is a longstanding tradition in this territory that trials proceed in the community in which the allegations arise. Having said that, we do not have “judicial districts” and it is within the discretion of the court to determine where a trial will proceed.

It may be that a consideration of delay in the context of COVID-19 requires the court to consider moving jury trials to Iqaluit or other larger centres where they can be accommodated. [ 65 ] It was not until August 10, 2020 that the matter was to proceed before a judge alone. C. COVID-19 in Rankin Inlet [ 66 ] On November 19, 2020, the community of Rankin Inlet, where this trial is to proceed, was confirmed as having the first case of COVID-19 in the territory. The number of cases in Rankin Inlet and in nearby communities increased.

On November 18, 2020, the Chief Public Health Officer declared a territory wide lockdown. The court made the decision to suspend court operations for the balance of the year. As a result, the December 7, 2020 circuit to Rankin Inlet was cancelled. [ 67 ] The territorial lockdown was lifted on December 2, 2020. However, Rankin Inlet remained on strict restrictions. The outbreak of COVID-19 in Rankin Inlet was not declared over until December 28, 2020. [ 68 ] Counsel for the accused submits that this circumstance is not relevant and has not contributed to the delay in this matter.

In particular, he submits that the trial could not have proceeded on the December 7, 2020 circuit in any event as the court had not yet issued its decision on the s. 276 application. I disagree. [ 69 ] Judges, like lawyers and other working professionals, must prioritize work. The judge on the s. 276 application was acutely aware of the need to release his decision prior to the trial date. The discussion with counsel made it clear that receiving the decision one week prior to trial was sufficient for counsel (see transcript, November 6, 2020, pages 65-67).

When court circuits were cancelled and the trial adjourned to the next available circuit, the judge was able to reprioritize his assignments. The decision has now been released, well in advance of the trial date. [ 70 ] Defence submits that Nunavut has lagged behind other jurisdictions in offering to conduct proceedings remotely during the pandemic. In his written brief, Defence Counsel states: 26. Moreover, unlike other jurisdictions once the Crown was made aware of the possibility that proceedings could be affected by a global pandemic, no steps were taken to mitigate the impact on dated proceedings.

While Nunavut was ahead of most other jurisdictions at the beginning of the pandemic, due to its history of remote, oral proceedings where possible, it quickly fell behind. Other jurisdictions adopted virtual, video proceedings, including for trials.

This option is still unavailable in Nunavut, even for judge alone, low witness, simple trials near the presumptive ceiling, such as this one. [ 71 ] This assertion is incorrect. [ 72 ] Crown Counsel has filed the Nunavut Court of Justice’s Memo to the Bar dated May 27, 2020 (attached as Appendix “D”), issued just over two months after the first territory wide lockdown. The bar was encouraged to bring matters forward to be dealt with remotely.

Indeed, this is a theme that runs throughout the various meetings between the judiciary and the bar throughout the pandemic. [ 73 ] To my knowledge, in addition to various types of civil matters, bail hearings, bail reviews, sentencing hearings, and one dangerous offender application, the court has also arranged for two matters to proceed to trial with the use of video conferencing during the pandemic. One matter involved an accused in Toronto whose counsel was also in Toronto. Hotel conference facilities were booked in Toronto and arrangements were made to have a deputy judge preside.

Crown Counsel and numerous witnesses (including three who are youthful) were to appear via video. Unfortunately, this matter had to be cancelled due to an escalation in COVID-19 risk in Toronto.

[ 74 ] A second trial involved co-accuseds, one a corporation and the other an individual, both based in Atlantic Canada. This matter did not proceed due to the filing of pretrial applications. [ 75 ] For counsel who wished to move matters along, the court was able to able to work with them to find creative solutions. [ 76 ] However, remote trials engage s. 650 of the Criminal Code : 650

(1) If the court so orders, and if the prosecutor and the accused so agree, the accused may appear by counsel or by closed-circuit television or videoconference, for any part of the trial other than a

part in which evidence is taken.

(2) The court may … (

b) permit the accused to be out of the court during the whole or any part of his trial on such conditions as the court considers proper … [ 77 ] In the case of Re: Court File No. 19/578 Ont. S.C., the court held that s. 650(2)(

b) permits the court to order that an accused not be present for his trial, where the accused consents. In that matter a judge alone sexual assault trial proceeded via Zoom. As the court in that case stated, a trial via video can be successful, “but it requires the hard work and assistance of counsel, the parties, and the court staff to make it work.” A collaborative approach to trial via video is especially essential in Nunavut, where the infrastructure to facilitate remote hearings lacks the availability and quality possible in other jurisdictions.

As recognized in Nunavut Tunngavik Inc’s recent report, Nunavut’s Infrastructure Gap (October 2020), these challenges affect all aspects of service delivery in Nunavut. [ 78 ] While many courts (including the Nunavut Court of Justice) are offering “remote trials”, it is my understanding all courts require the consent of the accused before proceeding with a remote trial. This must be so in order that s. 650 is not violated. [ 79 ] The Defence submits that there were no attempts to mitigate the delay caused by the cancellation of the December circuit as the Crown did not offer a remote trial to the accused.

I understand the argument to be that the Crown must specifically, on a case-by-case basis, offer a remote trial to an accused. [ 80 ] I reject this submission. While the Crown may not have canvassed with counsel the possibility of a remote trial in this particular matter, the court certainly urged all counsel to consider remote hearings in all matters.

Despite this urging, counsel in this matter appears to not have been aware of the opportunity. [ 81 ] Again, in the context of COVID-19, recognizing the capacity issues of all agencies involved, the court adopted the approach of relying on counsel to decide which matters they could best move forward via a remote hearing. [ 82 ] I find that the delay from December 7, 2020 to the anticipated March 8, 2021 trial date is an exceptional circumstance. [ 83 ] For the purposes of this decision, it is not necessary for me to decide if the entire period of COVID-19 since mid-March 2020 constitutes an exceptional circumstance and I decline to decide that issue.

VII. CONCLUSION [ 84 ] The application for a judicial stay of proceedings due to a breach of the accused’s right to be tried within a reasonable time is dismissed.

[ 85 ] The matter will proceed to trial on March 8, 2021, in Rankin Inlet. Dated at the City of Iqaluit this 9th day of February, 2021 ___________________ Justice S. Cooper Nunavut Court of Justice