R v Amaaq, 2020 NUCA 9

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Amaaq, 2020 NUCA 9 Date: 20200814 Docket: 07-19-012-CAP Registry: Iqaluit Between: Her Majesty the Queen Applicant - and - Katelynn Amaaq Respondent _______________________________________________________ Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ Application to Reinstate an Appeal and File Appellant’s Factum _______________________________________________________

Reasons for Decision of The Honourable Mr. Justice Jack Watson _______________________________________________________ I. Introduction [1] By the motion covered by these reasons, the Crown sought an order restoring its appeal to this Court pursuant to Rules 35and 51 of the Rules of Court. Rule 51 provides that a single judge of the Nunavut Court of Appeal has jurisdiction to restore an appeal tothe hearing lists.

I granted the motion and the appeal is now booked to proceed before the Court on September 25, 2020. [2] During the course of the hearing it was revealed to me that counsel for the respondent had asked at an appearance beforeJustice Sharkey on July 22, 2020 that the appeal be struck for non-compliance with the Factum filing rule requirement under Rule 50.While I was not provided with a transcript of those proceedings before Justice Sharkey, I was left to understand that such motions tend tobe dealt with fairly summarily because the session is regulatory and is not a formal “purge court” as such. [3] By expressly allowing a single judge of this Court to reverse such a direction to what counsel called “delisting” a case, itseemed that the framers of the Rules had in mind several options.

One such option would be that the “delisting” might be accepted asfinal by the party affected, with such consequences as may flow from that. A second such option would be that the basis of the“delisting” could be debated at a fuller hearing on affidavits as scheduled for a more convenient time. A third option might be that theparties would enter into a consent order restoring the appeal on conditions. That third option is also contemplated by Rule 51. [4] Practically speaking, this matter appears to have proceeded on the basis of the second option situation.

At the outset of thehearing I raised the question of my jurisdiction on this motion with counsel in order to be confident that I would not, by entertaining themotion, contradict an order of a judge of co-ordinate jurisdiction. Counsel assured me that the practice in Nunavut allowed this motion toproceed before me as it did. [5] In support of the motion to restore, the Crown relied upon an affidavit of Joshua Dodd, of the office of the PublicProsecution Service of Canada, Nunavut Regional Office in support of its application to restore (the “Dodd affidavit”).

In reply, counselfor the respondent provided an affidavit of Jonathan Ellsworth of the Legal Services Board (the “Ellsworth affidavit”). The content ofthese affidavits was a central focus of the submissions of the parties: see below. [6] During the hearing, both counsel’s submissions supplemented the content of the affidavits.

As those additions weresubmissions made to me as officers of the Court, I am able to rely on those additions as a basis on which to exercise my discretion. [7] Although it is not always so, it can be said that for procedural purposes the submissions of counsel have long been treated asbeing tantamount to evidence in a number of circumstances: see eg CBC v New Brunswick (Attorney General) (Re R v Carson), (SCC), [1996] 3 SCR 480 at para 72; R v Smith (1993), 1993 ABCA 167 , 141 AR 241 at para 4 (ABCA); R vBiscette (1995), 1995 ABCA 234 , 99 CCC (3d) 326 at para 8, affirmed (without reference to this) (SCC),[1996] 3 SCR 599; R v Chaplin, (SCC), [1995] 1 SCR 727 at para 31; R v C(R), 2005 SCC 61 at paras 9, 53-54,[2005] 3 SCR 99; R v Blackman, 2008 SCC 37 at para 30, [2008] 2 SCR 298; R v Wilson 2011 BCCA 252 at para 63, 272 CCC (3d)269. [8] Judges relying on counsel submissions alone to make decisions such as in relation to ‘voir dire’ decisions is not a newphenomenon: R v Dietrich, (ON CA), [1970] 3 OR 725, cited in R v Sproule (1975), (ON CA), 26CCC (2d) 92 at para 23.

Nor is it just a matter of criminal law practice: Holdyk v Adolph, 2012 BCCA 37 at para 28, 29 BCLR (5th) 79. [9] Indeed, the role of an ‘officer of the Court’ has long been associated with judicial authority rather than executive authoritythus escalating the duty of counsel to proceed as if giving formal evidence when addressing a court: compare R v Anderson, 2014 SCC41 at para 58, [2014] 2 SCR 167; R v Cunningham, 2010 SCC 10 at para 18, [2010] 1 SCR 331; compare Ex parte Garland, 71 US (4Wall.) 333 (1866, USSC). [10] It seems to me that chambers motions routinely rely on counsel submissions.

And for good and sufficient reason. But thereare also important caveats and corollaries to the general proposition about Courts being able to accept and act on what an officer of theCourt says. [11] First, the Court is not obliged to act upon what counsel says. It may be that what counsel says is, on its face, speculative ormere argument or advocacy. It may also be that what counsel says is a matter of significance to the case and thus should not be addressedin a

summary fashion. It may also be that what counsel says is contradicted by other facts or circumstances, such that the issue of factshould be tried in the usual way. Finally, on this first point, it may not be fair to act upon the submissions in the specific context. [12] Second, the Court’s decision to act upon what counsel says is ordinarily a matter of discretion, and the Court may well actupon those assertions only in part. If the Court concludes that the assertions of counsel are more forensic than factual, the Court mayinsist on better material.

After all, what counsel says may well have significant practical impact on the unfolding case: see R vDoonanco, 2019 ABCA 118 at paras 142-144, 373 CCC (3d) 275, reversed on other grounds 2020 SCC 2, 100 Alta LR (6th) 1. Theexercise of the Court’s discretion to act upon counsel’s submissions of fact, moreover, may be such as to involve error of law or principle

and thus may be reviewable for abuse of discretion or for correctness in relation to any law point involved. [13] Third, and of signal importance, the ability of counsel as an officer of the Court to make assertions of fact on which they seekreliance by the Court is escorted by a concomitant duty of counsel to be clear and forthright. Counsel should not invite Courts to relyupon what are mere guesses or assumptions of counsel. Counsel should not assert matters to be facts unless counsel believes the facts tobe true and has reasonable grounds to possess such belief.

Counsel should always be prepared to explain those grounds to the Court.Where counsel is unsure, or is merely inferring facts, counsel should alert the Court to that being the case so that the Court does notinaccurately assume that counsel has checked into the source of that information. The source, content and continuity of a fact are alwaysweighed in determining if the fact is reliable and meaningful. Finally, and for obvious reasons, counsel should not exaggerate ordissemble.

A Court is no place for fake news. [14] In this instance, I might add that I found both counsel before me to have made full, fair, and frank submissions as is expectedof counsel in their role as officers of the court: compare Ruby v Canada, 2002 SCC 75 at para 47 (‘candid’ replacing ‘frank’), [2002] 4SCR 3. [15] One limit on counsel’s duty of providing “full” information, of course, arises in relation to counsel’s duty to the client, inwhich case counsel may respectfully decline to comment if asked by the Court for information: Groia v The Law Society of UpperCanada, 2018 SCC 27 at para 76, [2018] 1 SCR 772 (“civility is often the most effective form of advocacy”).

In R v Neil, 2002 SCC 70at paras 12-19, [2002] 3 SCR 631, the colorful words of Henry Brougham in his defence of Queen Caroline centuries ago were said byBinnie J to resonate still, although arguably Brougham’s rhetoric was florid even in keeping with the times when he spoke. Counsel areentitled to say to the Court, “I feel unable to respond to that question.” In such instances, the Court should be able to take the hint. II.

Circumstances [16] Before turning to the respondent’s criticism of the Dodd affidavit, I note that the Dodd affidavit does disclose something ofthe internal operations of the Public Prosecution Service in relation to pursuing its appeals. It appears that the federal authorities still usesomething of a ‘layered lawyering’ approach to Crown appeals. Ms. O’Connor confirmed this in more detail in her oral submissions.This practicality of having sober second thoughts in relation to Crown appeals is not necessarily troubling.

Indeed, one would hope thatthe Crown would take appeals seriously. [17] But this is not to suggest or approve dawdling. The Crown should not emulate the pattern of Lord Chancellor Eldon (1801-1827) of taking a dilettante’s approach to legal reasoning. Lord Eldon eventually produced a body of work notably including thepersistent metaphor that “the equity of this court varies like the Chancellor’s foot”: Gee v Pritchard, (1818) 36 ER 670 (Lord Eldonseems to have lifted that metaphor from Sir John Selden in 1689).

But Lord Eldon did little if anything to expedite his dilatory Court,thus arguably deserving some credit as one source of Charles Dickens’ famed and unfavorable reflection upon the Court of Chancery inthe fictional case of Jarndyce v Jarndyce in Bleak House, (1853) (now published by Penguin Random House). [18] More to the point in the present case are the observations of Slatter JA in R v Chan, 2012 ABCA 250 at paras 26-41, 536 AR159.

At para 39, Slatter JA wrote that: The Crown is entitled to a certain amount of time to order transcripts, review the file, conduct research, and engage its internal decision-making processes. By that statement, however, Slatter JA did not support passivity let alone commend being lackadaisical. The Rules must be appliedconsistently with equal justice under the law.

The mere fact that the Crown is an institution and has duties transcending any specific casebefore any Court, and that it is not a personal litigant with a ‘stake’ in the result, does not amplify its time entitlements nor lighten the testfor justifying the re-opening of an appeal which has been struck. [19] The law on condonation of rule default and on restoration of a struck criminal appeal is not in dispute.

It was summarized byFrankel JA in R v C (TL), 2012 BCCA 131 at paras 26 to 28,285 CCC (3d) 486, as follows: 26 It is beyond question that this Court has discretion to reopen (i.e., reinstate) an appeal/application that has been dismissed/refusedother than on the merits; the applicant must satisfy what has been said to be the "heavy onus" of showing that it is in the interests ofjustice to do so: R. v. Blaker (1983), (BC CA), 6 C.C.C. (3d) 385 at 392, 393 (B.C.C.A.). The Crown's factum containsa helpful list of factors considered in deciding whether to grant such an order: (

a) the length of delay between the dismissal and the application for reinstatement, and the adequacy of the explanation offered for thatdelay: R. v. Findlay (1996), (BC CA), 79 B.C.A.C. 106 at para. 13 (

b) whether the Appellant contributed to the delay: R. v. Blaker at p. 393; (

c) whether the Appellant had a bona fide intention to pursue the appeal throughout the proceedings: R. v. Clymore, 1999 BCCA 225,134 C.C.C. (3d) 476 at para. 14; (

d) whether the initial Order was made in error, or the Court was operating under some misunderstanding of the material facts: R. v.Henry (1997), (BC CA), 100 B.C.A.C. 183 at para. 18; (

e) the effect reinstatement would have on public confidence in the administration of justice: R. v. Clymore at para. 16; (

f) the seriousness of the charges: R. v. Blaker at p. 392; (

g) the merit of the appeal: R. v. Blaker at p. 392; R. v. Clymore at para. 14.

27 Although not exhaustive, the above list does provide a useful guide for the court. Which factors will be of importance in a particularcase will depend on the circumstances of that case. The overarching factor is the interests of justice. 28 With respect to the "heavy onus", it is important to keep in mind that it applies not to each individual factor, but to the two essentialcriteria for reinstatement, namely: (

a) the earlier disposition was not on the merits; and (

b) reinstatement is in the interests of justice: R. v.Chan, 2008 BCCA 200, 255 B.C.A.C. 35 at para. 11. See also R v Sipos, 2008 ONCA 325 at paras 4-9, 235 OAC 277, focussing not on what were the specific points in C(TL) but onjurisdiction and on the second point in para 28 in C(TL). Similar points are made in R v Jorgensen, 2000 MBCA 114 at paras 8-13, 150Man R (2d) 279 and R v Noddle, 2019 BCCA 140 at para 43, [2019] BCJ No. 734 (QL). [20] It is with particular emphasis on the “two essential criteria” referred to in C(TL) at para 28 that I approached the materialprovided to me.

The Dodd affidavit went on to describe, albeit generally, the effects of the COVID-19 pandemic on the operations ofboth Courts and Government in Nunavut. It mentions the Emergency Closure Orders made for the Courts of Nunavut in March and Juneof 2020.

It cannot be said that those Closure Orders directly applied here to toll the Crown’s obligations, but they are part of the matrixof facts in which the diligence of the Crown as a de facto closed Government office was to be assessed. [21] It struck me that the Dodd affidavit was, however, rather conclusory and scant about what might have complicated theoperations of the Crown such as to generate seven weeks of delay past the rule-based deadline for filing of June 5, 2020.

The Doddaffidavit indicated that an internal Appeals Committee received the draft factum on June 24, 2020, that the Committee remitted it withmodifications to counsel on June 25, 2020, and a replacement was submitted and considered by the Committee on July 16, 2020, whichthis time proposed few changes and contemplated the appeal being heard on September 15, 2020. The factum was filed on July 29, 2020.It is 51 paras long, and cites 10 authorities. [22] Counsel for the respondent submitted, firstly, that a key flaw in the Dodd affidavit is the relative dearth of information as tothe reason for the delay.

Counsel for the respondent did not suggest that the seven weeks of overage was itself shocking, but he didcontend that the Dodd affidavit reflected no sense of urgency, but, rather, an inattentiveness to the filing deadline. [23] One might recall that in R v Jordan, 2016 SCC 27 at paras 137-141, [2016] 1 SCR 631 (albeit in the context of getting trialsdone), the Supreme Court of Canada underlined that counsel (particularly Crown counsel) and the Courts share a responsibility to movewith more alacrity, and to devise and implement procedures to enhance forward motion.

Jordan did recognize as well, at para 140, that“Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequatelyresourced.” [24] Crown counsel submitted in response to the respondent’s position that the current reality of the pandemic and the ongoingreality of a small office of counsel whose prosecutorial duties cover a vast area of widely separated communities accessible only by airhad to carry weight in this context.

That is certainly true, and quite a distinction from the comparable offices (often of specialists inappeals) in major cities. [25] It would be quite unfair of me to assume that counsel who have to do both appeals and trials have a lot of time on their hands.On the other hand, counsel for the respondent suggested that the closure of the trial Courts of Nunavut ought to have presented Crowncounsel with an opportunity to get caught up on the paperwork.

Both counsel in their submissions adverted to the fact that counsel whoprepared the Crown factum and had responsibility for the appeal was situated in Yellowknife, hours away not only by distance but bytime zones. [26] In listening to both counsel’s submissions, I got the distinct impression that the challenges for the Crown office and for theLegal Services Board of which the respondent’s counsel was a member were aligned in the sense that the significant challenges ofclimate, geography, distribution of population, and communications were shared.

Without being in a position to closely evaluate thesituation, I have no reason to doubt that the various lawyers have been trying their best, bearing in mind the human realities for them asindividuals and as obligors in family responsibilities. With that in mind, it is understandable that both counsel would indicate to me thatthe practice is not ‘sharp’ when it comes to deadlines. [27] The respondent’s counsel made a second point, however.

In the Ellsworth affidavit, it was pointed out that the respondent’scounsel had been pressing for the Crown factum, and even warned Crown counsel that the clock was running and when the 60-day limitwas going to run out. There was also a discussion of a different topic in the exchange of correspondence between counsel which in myview was unrelated to the question of appeal delay. Counsel were both forthright in speaking on that additional matter to me, but I neednot and should not get into it.

I am confident that counsel will sort that out. [28] More to the point, counsel for the respondent faulted the failure of the Crown to include, in the Dodd affidavit, theinformation and copies of exchanges between counsel for the Crown and counsel for the respondent that were reproduced in theEllsworth affidavit. The respondent’s counsel, in a sense, expressed surprise that he had to file the Ellsworth affidavit to get thatinformation before me. There is some force to this objection.

This is, in that sense, raising the point of the caveats and corollaries aboutreliance on counsel submissions as discussed earlier in these reasons. [29] To paraphrase what was said in R v Heikel (1992), 1992 ABCA 142 , 125 AR 298 at paras 34-35, a Court should notexpect to have to “cross-examine counsel concerning the subtleties or nuances of a statement to the court in order to eliminate thepossibility that some hidden meaning lurks in the background”: see also R v deKock, 2009 ABCA 225 at para 25, 454 AR 102. [30] But I hasten to add that I fully accept the submission of Crown counsel before me that there was nothing clandestine ormischievous about the design of the Dodd affidavit.

As Crown counsel pointed out, the effort to bring on this application to restore washurried, and the Crown counsel more directly involved in the appeal and the factum resides in a different territory, the counsel exchangeswere with him at his Yellowknife office and, if I understood correctly, he was on leave at the time local Crown counsel put together theDodd affidavit. Indeed, I understand the point of the respondent’s counsel is not that there was some form of ethical flaw. He situated hisconcern in the venue of error. That makes sense to me.

[ 31 ] I turn now to the merits of the motion. [ 32 ] As to the merits of the motion, I have reviewed the Crown factum for the appeal. The appeal was launched in time and is at least arguable. The issues are, in my view, very serious albeit from both sides’ perspectives and there is a high public interest in what is involved. Further, I accept Crown counsel’s submissions as to processing challenges faced by the Crown, although I agree with counsel for the respondent that better management of those challenges may well have been possible.

The Crown did, however, move quickly to recover from the error. [ 33 ] Furthermore, I am persuaded that the enlightened citizenry would not have their confidence in the justice system validated if this appeal were seen to fail solely due to the filing flaw. After anxious consideration, I am persuaded that it is not in the interests of justice for the appeal to be finally dealt with on that basis. This case should be heard by a panel of the Court.

It should be recalled, however, that the appeal is subject to a requirement of leave of the Court, albeit a requirement which is often of low profile and which is not itself limited to the merits of the appeal itself. Leave motions before a panel may always revisit what interlocutory motion judges say. [ 34 ] Further still, there also does not appear to be any prejudice to the respondent, other than the pre-existing prejudice arising from the existence of the appeal in the first place.

The appeal will now be heard on the date it would have been heard anyway, although I must commend the respondent’s counsel for taking the steps necessary to bring that about. His approach is in the highest traditions of the bar. III. Conclusion [ 35 ] In the end, I concluded that the restoration order should be granted but with efforts to expedite the appeal which, as said, counsel have co-operatively moved to accomplish. The Crown motion was therefore granted as counsel were advised in advance of receiving these reasons, which were promised during the hearing.

Application heard on August 12, 2020 Reasons filed at Iqaluit, Nunavut this 14th day of August, 2020 Watson J.A. Appearances: S. O’Connor for the Applicant B. Cowan for the Respondent