Her Majesty the Queen - v. -, 2016 SKPC 180

IN THE PROVINCIAL COURT OF SASKATCHEWAN Date: December 20, 2016 2016 SKPC 180 Information: 24358274, 24358317 Location: Fond du Lac _____________________________________________________________________________ Between: Her Majesty the Queen - and - Derek John Isadore Appearing: Mr. Greg Lyndon For the Crown Ms. Crystal Eninew For the Accused JUDGMENT R.J. LANE , J [ 1 ] Derek Isadore is charged on two Informations with various serious weapons offences and violent assaults, not the least of which is an aggravated assault contrary to s. 268 of the Criminal Code .

Information #24358274 arises February 27, 2016 when the accused was arrested, charged and released on or about February 28, 2016. Information #24358317 arises July 16, 2016 at Fond du Lac and the accused appears to have been arrested around that date. The accused had a show cause hearing on July 28, 2016 and he was remanded in custody. [ 2 ] On August 18, 2016 the accused appeared in court in Fond du Lac and the matter was adjourned to September 22, 2016 so

Legal Aid could arrange for conflict counsel for him. On September 22, 2016 the accused appeared in court in Fond du Lac and his lawyer, Ms. Crystal Eninew, elected trial by Provincial Court Judge and the matter was adjourned for trial in Fond du Lac to November 24, 2016 at 10:00 a.m. A remand warrant was issued. He was to be produced on the trial date in Fond du Lac by RCMP provost. [ 3 ] The trial day arrived and RCMP provost did not deliver Mr. Isadore to Fond du Lac for court. Mr. Greg Lyndon was the prosecutor in Fond du Lac and had little information to share with the court as to why Mr.

Isadore was not produced. In the absence of an explanation, I invited Ms. Eninew to file a Charter notice citing potential breaches under s. 7 and s. 12 of the Charter of Rights and Freedoms. Ultimately neither Crown nor defence wanted to lose what tactical advantage they might have in cross-examination of the three witnesses that the Crown would make available, so the Court called the witnesses at its own behest and both Crown and defence had a right to cross-examination.

The testimony was heard December 20, 2016 with Constable Murphy of RCMP provost and Cheryl Martin of the Prince Albert Correction Centre both testified by telephone. Crown prosecutor Greg Lyndon testified in person. The Charter notice served and filed by Ms. Eninew was as follows:

a) Has there been a violation of the accused’s right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with principles of fundamental justice pursuant to s. 7 of the Canadian Charter of Rights and Freedoms ?

b) If so, what is the appropriate remedy in the circumstances?

c) Has there been a violation of the accused’s right to be tried within a reasonable time pursuant to s. 11(

b) of the Canadian Charter of Rights and Freedoms ? and

d) If so, what is the appropriate remedy in the circumstances? [ 4 ] Mr. Greg Lyndon testified that he learned on Tuesday, November 22, 2016 at approximately 9:00 a.m. that the RCMP provost plane would not be transporting prisoners by air to either Black Lake court on November 23 or Fond du Lac court on November 24, 2016. He was told this by Cheryl Martin, an employee of the Prince Albert Correctional Centre. He was told the reason was due to dangerous flying conditions from freezing rain. He testified that from his conversation with Ms.

Martin he learned that the RCMP provost plane was cancelled for northern air travel for the entire week. He testified that he called me as presiding judge, which he did at my home on the evening of November 22, 2016 to get my view of things. Based on his explanation that the air transportation of prisoners would not occur that week I suggested that he call off his witnesses, particularly one witness he indicated would be travelling by plane from southern Saskatchewan. We discussed as well the advisability of keeping Ms.

Eninew in the loop so she could make a decision as to whether to fly from Prince Albert to Fond du Lac or whether she would prefer to appear by telephone. [ 5 ] The Court’s second witness was Cheryl Martin, who as indicated, is employed at Prince Albert Correctional Centre and was the person who discussed prisoner transportation on at least a daily basis with RCMP provost. She testified that on November 22, 2106 she spoke with Constable Murphy from RCMP provost. She was told by Constable Murphy that the weather was too dangerous to fly prisoners.

She was certainly left with the impression that the prisoners for Black Lake on November 23, 2016 and Fond du Lac on November 24, 2016 would not be transported because she arranged for Joey Toutsaint (who was to appear in Black Lake on November 23, 2016) and Derek Isadore (who was to appear in Fond du Lac court on November 24, 2016) to appear by telephone. In fact, she told Constable Murphy that she would arrange for phone court appearances for the entire week for prisoners who would otherwise be flown to the north.

She testified that she either called or e-mailed Crown prosecutor Greg Lyndon to advise him of the situation. She also said that Constable Murphy said provost was short of staff thereby exacerbating the problem. [ 6 ] The next court witness was Constable Murphy of RCMP provost. He testified that there are two divisions in RCMP provost, 1) where prisoners are transported by road transportation, and 2) where prisoners are transported by plane. Due to the freezing rain on Monday, November 21, 2016, the prisoner plane did not fly.

On November 22, 2016, due to freezing rain, the RCMP provost plane as well as road transportation were both cancelled. He testified that flight services of RCMP provost is the body that makes the decision on whether or not it is safe to fly. He said the flight services makes their decision on whether or not to fly each morning and then they advise him. He also testified that he had understood that freezing rain was forecast for November 23 as well. He testified that the decision of whether or not to transport prisoners is made sometimes on a daily basis and sometimes on a weekly basis.

He testified that cancelling transportation for prisoners is actually a big deal for their unit, essentially doubling or tripling the workload for the next possible transportation day.

[ 7 ] He said he did not transport the accused, Derek Isadore, because Ms. Martin told him it was not necessary. Mr. Isadore was going to appear by phone. He further testified that he later learned that the RCMP provost plane did in fact land in Fond du Lac on November 24, 2016, the trial date for Derek Isadore. [ 8 ] I can say that on Wednesday, November 23, 2016, the Court party was in Black Lake/Stony Rapids and the skies were clear.

In fact the Crown acknowledges that the RCMP provost plane did in fact land in Stony Rapids that day, transporting, among other people, an RCMP officer who was to be a witness for a trial to be held in Black Lake November 23, 2016. When it was determined that Mr.

Isadore was not produced in Fond du Lac for his trial and there was really no explanation that the Crown could give (the Crown had been told the cancellation for Black Lake and Fond du Lac was due to weather) the Court had serious concerns especially in view of the fact that the RCMP provost plane did deliver an RCMP officer to Black Lake on November 23, 2016 for the purpose of being a witness on a trial. No blame whatsoever goes to Mr. Lyndon in this. He acted appropriately and with integrity throughout.

In fact, he was essentially left hung out to dry by RCMP provost when they decided on November 22, 2016 they would not deliver prisoners to Black Lake on November 23 or to Fond du Lac on November 24, 2016 and yet Mr. Lyndon only finds out when the court party arrives in Black Lake that in fact the provost plane was landing that very morning. However, it did not bring Joey Toutsaint for his Black Lake court appearance. [ 9 ] I am personally aware of the hazardous flying conditions on Tuesday, November 22.

I am also aware of the forecast of more freezing rain for November 23. [ 10 ] There is no doubt in my mind that Cheryl Martin believed that prisoner transportation by air for November 23 and November 24, 2016 was cancelled the morning of November 22. Whether Constable Murphy said that specifically or not, it must have been implied to Cheryl Martin who then made arrangements for Mr. Joey Toutsaint and Mr. Derek Isadore to appear by telephone. It is obvious that Constable Murphy would or should have known that the prisoner planes were flying to the north on November 23 and 24, 2016.

The question is what should he have done once it was ascertained that air transportation of prisoners would occur. There was no doubt that Constable Murphy’s concerns of the dangerous weather for both road and air transportation were legitimate. It is to be noted, once again, that he is not the person responsible for making the decision on whether to transport prisoners by air.

He is, however, the person apparently responsible for communicating that position to the Prince Albert Correctional Centre and I would have thought, to the appropriate public prosecutions office or Crown prosecutor. [ 11 ] I have concluded that there was no bad faith or malice demonstrated by RCMP provost in failing to deliver Derek Isadore to Fond du Lac for his trial on November 24, 2016. [ 12 ] It is certain, in my view, that Constable Murphy, in that conversation he had with Cheryl Martin of Prince Albert Correction Centre on November 22, 2016 left her with the conclusion that no prisoners would be flown to northern court points for November 23 and 24, 2016 and in fact for the balance of the week.

I do however accept his testimony that he did not specifically say that, but I do believe that, one way or another, that is the message that was received by Ms. Martin. She reacted appropriately by trying her best to arrange an alternative method of court appearance for Derek Isadore and by notifying Crown prosecutor, Greg Lyndon and Mr. Lyndon, in my view, did everything he could to keep the Court and Ms. Eninew apprised of the developments on prisoner air transportation. Constable Murphy concluded, when Ms.

Martin told him that Derek Isadore would appear by phone, that his physical presence in Fond du Lac court was no longer necessary. [ 13 ] Had I found that the RCMP provost had acted in bad faith in failing to deliver Derek Isadore to Fond du Lac for his trial on November 24, 2016, I would have found an abuse of process and therefore would have found that Mr. Isadore’s Charter rights under s. 7 would have been infringed. I would then have been in a position where I would have to decide what remedy would be appropriate.

One of the possible remedies is directing a judicial stay on, among other things, a charge of aggravated assault, one of the most serious offences of violence in the Criminal Code of Canada . I only say this to illustrate how important the issue of prisoner transportation and communication really is. [ 14 ] Because I find no bad faith demonstrated by the Crown through the RCMP provost division, I find there is no breach of Derek Isadore’s s. 7 Charter rights.

Likewise I find that Derek Isadore’s rights to be tried within a reasonable period of time as guaranteed by s. 12 of the Canadian Charter of Rights and Freedoms were not infringed, I do not have to examine anything further in terms of remedy. [ 15 ] In R v Jordan , 2016 SCC 27 , the Supreme Court of Canada stated that any matter that proceeds to trial in Provincial Court over a period greater than 18 months is presumed to be an unreasonable delay. In cases where the delay is less than 18 months, the Court

still has the right to find that the time to trial was unreasonable. [ 16 ] In my view, if I had concluded that RCMP provost had acted in bad faith or with significant negligence, I may well have found that the delay was unreasonable especially in view of the fact that Derek Isadore had sat in remand for approximately four months waiting for his trial. [ 17 ] As I have found here that there are no Charter breaches, I need not consider any possible remedies. [ 18 ] However, I feel it is incumbent on the Court to comment on what does appear to be a significant communication problem between RCMP provost and the other players in the justice system.

I get that neither RCMP provost or the Prince Albert Correctional Centre know the reason a prisoner has to be in court at any particular time or any particular location. It is likely best that they don’t know as in marginal situations where there is only one seat left on a prisoner plane, they could be forced into a situation where they may feel they must decide who travels and who doesn’t.

Thus, they must operate, in my view, on the assumption that each and every prisoner must be in court for an important court appearance. [ 19 ] Inclement weather is a reality in Saskatchewan that does impact on RCMP provost’s ability to get prisoners to remote locations. Indeed, the court party has to cancel court with some regularity when the temperature is too low or freezing rain exists or there is a low cloud cover. In my view, the prisoners and RCMP provost’s safety should and must be paramount.

However, there should not be any reason that RCMP provost cannot communicate directly with public prosecutions when a prisoner transportation issue arises. Had they done so in this case, Mr. Lyndon could have requested that they produce Derek Isadore for his trial, once he learned that not only was RCMP provost was flying in northern Saskatchewan on November 23 and 24, but indeed they were flying to Fond du Lac on November 24 which was Derek Isadore’s trial date. [ 20 ] The evidence would suggest that RCMP provost is short staffed, as many detachments and units in Saskatchewan are.

That is a problem that RCMP management will have to fix one way or the other. That being said, I am empathetic to the choreography that RCMP provost in general and Constable Murphy in particular must perform daily and in a more complex scenario when weather dictates cancellation of transportation. [ 21 ] However, in my view, one more phone call added on to Constable Murphy’s day would not be unduly burdensome and in this could have resulted in Mr. Lyndon recommending or suggesting prisoner transportation priorities, such as, getting Derek Isadore to Fond du Lac for his trial.

It is simply matter of RCMP provost having the cell phone numbers of the various prosecutors and their assigned circuits. [ 22 ] It is sincere hope that a more direct line of communication between RCMP provost and public prosecutions will be developed. It would save a lot of angst for all parties concerned, not the least of which, is an accused person sitting in remand for his trial. [ 23 ] I want to express my gratitude to Crown prosecutor, Ruth Fafard, and defence counsel Crystal Eninew, for the immense amount of work they have put into preparing for this Charter application. ______________________ R.J. Lane, J