R v Ukkalianuk, 2014 NUCJ 18

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R v Ukkalianuk, 2014 NUCJ 18 Date: 20140414 Court File: 08-13-495 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Elise Ukkalianuk ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Crown): Doug Garson Counsel (Accused): Julie Bedford Location Heard: Iqaluit, Nunavut Date Heard: March 28, 2014 Matters: Ss. 7 , 24(1) of the Canadian Charter of Rights and Freedoms REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication) Amended Decision: An amended decision was issued on May 15, 2014; the corrections have been made to the text and the amendment is appended to this judgment.

I. INTRODUCTION [1] Ms. Ukkalianuk is charged with aggravated assault. She alleges that her right to life, liberty and security of the person and the rightnot to be deprived thereof except in accordance with the principles of fundamental justice, pursuant to

section 7 of the Canadian Charterof Rights and Freedoms has been breached. The remedy she seeks is a judicial stay of proceedings. II. BACKGROUND [2] It is alleged that Ms. Ukkalianuk stabbed her common-law partner in the leg with a pen-like instrument. The complainant was theonly witness to the incident. He gave a statement to the police on July 19, 2013, the same day the alleged incident occurred. Thestatement was taken at the RCMP detachment and audiotaped on a hand-held recorder.

It was subsequently downloaded to a computer.The officer who took the statement and downloaded it to the computer checked the computer to ensure that the download had beensuccessful. [3] On November 27, 2013, Crown counsel requested disclosure from the RCMP. When attempts were made to retrieve the statement tocomply with disclosure obligations it was discovered that the statement was not retrievable and Defence counsel were advised of theproblem. [4] The accused appeared in court on November 28, 2013 for her preliminary hearing.

With the assistance of counsel she waived herpreliminary hearing and consented to a committal on the charge of aggravated assault. That trial is scheduled to proceed on May 14th,2014, before a judge sitting alone. [5] By February 10, 2014, the accused had changed counsel. Her new lawyer made a further request to the Crown for disclosure of thecomplainant's statement. Defence counsel was again advised that the statement was not available. [6] The Defence has available to it the RCMP officer's

summary of the complainant's statement. [7] The Defence argues that the accused has been prejudiced in making full answer and defence as she has been deprived of theopportunity to cross-examine the complainant on potential inconsistencies in his statement. The Defence says that the preliminaryhearing was waived as the prejudice was equally present at that stage of the proceedings. [8] The Crown submits that any prejudice to the accused is speculative at this stage as it is not possible to determine if there will beinconsistencies in the testimony of the complainant and the statement he gave to the police.

They argue that a judicial stay should begranted only in the clearest of cases and that this case does not fall into that category. They submit that at the very least, the applicationfor a judicial stay is premature and the matter should proceed to trial, at which time the court will be better placed to determine whetherthe conduct of the Defence has been prejudiced by the lack of disclosure. III.

ANALYSIS [9] In R v Carosella, (SCC), [1997] 1 SCR 80, [1997] SCJ No. 12, [1997] 112 CCC (3d) 289 the Supreme Court ofCanada considered whether the deliberate destruction of notes taken during an initial interview with a complainant at a sexual assaultcrisis centre for the sole purpose of ensuring the notes were not disclosed to Defence, constituted a breach of the accused

section 7Charter rights and, if so, whether a stay of proceedings was an appropriate remedy. [10] The court held that the right to disclosure is subsumed in

section 7 of the Charter and as such, is a component of a constitutionally

protected right. In determining whether there has been a breach of a Charter right the court is not to consider whether the accused hasbeen prejudiced by the breach. Prejudice is to be considered only when considering the appropriate remedy under section 24(1) of theCharter. [11] In R v La, (SCC), [1997] SCJ No. 30, 116 CCC (3d) 97 [La], the Supreme Court again considered the issue ofdestroyed or lost evidence in the context of a statement taken in the course of a child protection proceeding and subsequently found to berelevant to a criminal proceeding.

The court stated that the duty to disclose places a duty on the state to take reasonable steps to preserveevidence. What constitutes reasonable steps will vary depending upon various factors, including the perceived relevance of the evidenceand whether or not criminal proceedings were foreseeable at the time the evidence was obtained. If the loss of evidence is satisfactorilyexplained then there is no breach of

section 7 of the Charter. If unacceptable negligence on the part of the state led to the loss ofevidence, then the court must proceed to consider a remedy pursuant to section 24(1) of the Charter. [12] The issue that arises in this case was fully canvassed in the case of R v Inuktaluk, 2010 NUCJ 20, [2010] Nu J No 14 [Inuktaluk].The facts in that case were similar to the facts in this matter. In Inuktaluk the complainant's statement was irretrievably lost when it wasbeing transferred from one computer to another. The court found that the best practice was to always make a backup copy and that thefailure to do so amounted to unacceptable negligence and a breach of the accused

section 7 Charter rights. However, the court went on tofind that it was premature to grant a remedy under

section 24 of the Charter and that it was only after hearing the trial evidence that thecourt could determine if there was prejudice to the accused right to full answer and defence. [13] In the matter before me, there has been no explanation given for the loss of the statement. The Crown did not lead evidenceregarding an established protocol for ensuring that relevant evidence is adequately preserved. There was no evidence that the statementwas duplicated or backed up neither was there an explanation whether the loss was due to a computer malfunction or human error. As inInuktaluk, I find that the loss was due to unacceptable negligence, amounting to a breach of the accused’s rights under

section 7 of theCharter. [14] The Defence relies upon the case of R v Dillabough 2000 YTTC 501 [Dillabough], in which the court decided the application for astay as a pre-trial motion. The case is distinguishable in that the court felt itself bound to proceed in that manner given not only that bothcounsel wished to proceed in that manner but also because it considered itself bound by a direction by a different judge that the stayapplication “should proceed in advance of the trial” Dillabough at para 16.

The court also found that in the circumstances of thatparticular case, all of the evidence was available at the pre-trial motion that would be available at trial so it was possible to assess the fullimpact of the loss of evidence.

Nonetheless, the court was mindful that the preferred practice was to defer the matter to the trial so thatsufficient evidence would be before the court to determine an appropriate remedy. [15] The Supreme Court of Canada in La also considered when the application should be heard, stating: The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudiceon the fairness of the trial. This is often best assessed in the context of the trial as it unfolds.

Accordingly, the trial judge has a discretionas to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no othercourse of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserveon the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimizethe prejudice have borne fruit. (La at para 27)

[ 16 ] The Defence submits that the prejudice in this matter is amplified because the lost statement was not available for the preliminary hearing and will not be available for the trial. They say that this was a contributing factor to the Defence decision to waive the preliminary hearing and consent to committal. I have difficulty with this submission. The preliminary hearing is both a test of the strength of the Crown's case and an opportunity for Defence to discover.

Had the preliminary hearing proceeded, the complainant would have testified under oath and the Defence would have had the opportunity to cross-examine, including cross-examination on the statement based on the police officer's notes.

This would not only have assisted the court in determining if loss of the statement resulted in actual prejudice to the Defence, but it might also have mitigated any such prejudice. [ 17 ] In the matter before me, it is likely that the trial will turn on the credibility of the witnesses so any inconsistencies between the complainant's testimony in court and his statement to the police is potentially significant. At this point the Defence has the notes that the officer made while taking the statement from the complainant.

These notes may prove to be useful to the Defence, both in preparing to cross-examine the complainant and in confronting him with inconsistencies between his testimony and what he said to the police. It is simply not possible at this juncture to determine if there is any actual prejudice to the Defence as a result of the loss of the statement. IV. CONCLUSION [ 18 ] Accordingly, I deny the application at this time.

The application may be renewed during or at the conclusion of the trial, at which time the court will have sufficient evidence to assess the impact the loss of the statement has had on the fairness of the trial and the right of the accused to make full answer and defence. Dated at the City of Iqaluit this 14th day of May, 2014 ____________________ Justice S.

Cooper Nunavut Court of Justice ___________________________________________ Amendment of the Reasons for Judgment Reserved of The Honourable Madam Justice Cooper ___________________________________________ The date this decision was released to Counsel has been changed on the frontispiece from:

20140328 to: 20140414 The name of the Accused has been changed on the frontispiece from: Elsie Ukkalianuk to: Elise Ukkalianuk Please replace the amended pages in your hard copy of the judgment.