R. v. Sagiatook, 2017 NUCJ 4

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: R. v. Sagiatook , 2017 NUCJ 4 Date of Judgment : 20170202 File Number: 08-13-464 Registry: Iqaluit Respondent: Her Majesty the Queen -and- Applicant: Takialik Sagiatook ________________________________________________________________________ Before: The Honourable Madam Justice Cooper Counsel (Prosecutor): Doug Garson Counsel (Accused): Tamara Fairchild Location Heard: Iqaluit, Nunavut Date Heard: October 12, 2016 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); Voir Dire REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION: [ 1 ] This is a Defence application for a judicial stay of proceedings on the basis that the right of the accused to have a trial within a reasonable time, pursuant to 11(

b) of the 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 [Charter], has been breached. II. BACKGROUND: [ 2 ] The incident which led to the accused being charged occurred on June 3, 2013. The accused was arrested shortly thereafter and charged with assault causing bodily harm. On June 21, 2013, prior to his first appearance, he was rearrested and charged with aggravated assault as a result of the police having received updated medical information about the complainant.

The accused was released on process to appear in court on August 22, 2013. [ 3 ] The application for a stay of proceedings due to delay was heard on Oct. 12, 2016. This date had initially been set for trial however the delay application needed to be heard and ruled upon before a trial could proceed. III. ANALYSIS: [ 4 ] The application for a stay of proceedings due to delay was filed on July 4, 2016. Subsequent to the filing of the delay application but prior to the matter being argued, the Supreme Court of Canada released its decision in R v Jordan , 2016 SCC 27 , 335 CCC (3d) 403 [Jordan] .

This matter is caught by the transitional provisions set out in Jordan . The analysis which must be applied is as follows: [ 5 ] Since this is an Indictable matter, with a preliminary hearing, the ceiling beyond which delay is presumptively unreasonable is 30 months. [ 6 ] Whether the delay is above or below the presumptive ceiling is calculated by determining the total delay and deducting from it any delay attributable to the Defence or waived by the Defence.

The time remaining will be referred to as the “net delay”. [ 7 ] If the net delay is below the presumptive ceiling the onus is on Defence to establish that the delay is unreasonable. If the net delay is above the presumptive ceiling the Crown may rebut the presumption of unreasonable delay by establishing the existence of exceptional circumstances. [ 8 ] The chronology of this matter is set out in the attached Appendix “A”. IV. TOTAL DELAY: [ 9 ] The total delay in this matter to date is 44 months. The delay from the laying of the charge to the date of this application being heard is 40.5 months. V.

DELAY WAIVED OR CAUSED BY THE DEFENCE:

[ 10 ] On September 9, 2013, the accused appeared in court and the Crown indicated that it was still vetting disclosure. The matter was set to October 21st, rather than an earlier court date, as the Defence felt more time would be required to review the disclosure once it was provided. [ 11 ] Disclosure had been completed by September 27, 2013. At the October 21, 2013 court appearance the Defence requested an adjournment so that a specific lawyer could be appointed to the case, indicating that the matter was “…a bit more complicated than the usual matter.” [ 12 ] The matter was adjourned to November 4, 2013.

On November 4, 2013, the court was advised that specific counsel had been assigned to the case and that a further 2-3 weeks was required to review the disclosure. The matter was adjourned to November 18, 2013, at which time the accused entered an election of judge and jury, with a preliminary inquiry. [ 13 ] The record indicates that counsel was not assigned to the case until sometime between October 21 and November 4 th , 2013. The assigned counsel was able to review the disclosure and take instructions during the two week adjournment from November 4 to November 18th.

Had counsel been assigned by the time disclosure was complete on September 27th, it is reasonable to infer that the accused could have made his election on the October 21st court appearance. [ 14 ] I find that the delay from October 21 to November 18, 2013, a period of approximately 1 month, was caused by the Defence. [ 15 ] There is also a period of delay from August 11, 2014 to October 5, 1015, where there were difficulties setting a trial date due to either the unavailability of Defence counsel or the unavailability of the Court.

The Defence was not available from August 11, 2014 to February 5, 2015, a period of almost 6 months, however the earliest trial date offered was December 15, 2014. There were no court dates in February, March or April, 2015 and the Defence was able to offer only two days in early May and was then unavailable until October, 2015. [ 16 ] It is difficult to assess these time periods as, in practice, once either counsel or the court has expressed a lack of availability the other parties generally do not address their own availability for that time period.

What is clear however is that there were large periods of time when Defence counsel was not available and, when available, it was for narrow time frames. [ 17 ] I am attributing 6 weeks of delay, from December 15, 2014 to January 31, 2015, to the Defence. The delay from February 1 to May 11, 2015 are attributable to the court due to a lack of resources. [ 18 ] During the period from mid-May to October the Defence was able to offer only 2 days of availability. In my view offering up 2 days of availability in a five month period, is not reasonable.

Accordingly, I attribute 4.5 months, from May 11 to October 6, 2015, to the Defence. [ 19 ] The total delay attributable to the Defence is 7 months. This reduces the delay from the time of charge to the time of hearing this delay application to 33.5 months and to the present date to 37 months. [ 20 ] The delay attributable to the time required to get the matter to Preliminary Hearing and the time required for this application are more difficult to assess. VI. DELAY RELATING TO THE PRELIMINARY HEARING: i.

Feb. 27 - June 5, 2014: [ 21 ] The Preliminary Hearing was scheduled to proceed on February 27, 2014, however it was adjourned to June 5th, 2014 resulting in a delay of approximately 3.5 months. From a review of the Record it appears that there was disagreement between the Crown and Defence regarding the witnesses that would be called at the Preliminary Hearing. The Crown intended to call 2-4 witnesses

while the Defence was requesting to hear from 7 witnesses. [ 22 ] Crown counsel indicated to Defence that the Preliminary Hearing would not be able to proceed as scheduled if 7 witnesses were to testify, as not all the witnesses had been subpoenaed and Crown did not think that the time scheduled would be sufficient. Defence counsel proposed starting the Preliminary Hearing and adjourning it to a future date for the balance of the witnesses however the Crown was understandably reticent to proceed in this manner given the scheduling difficulties that can be encountered with an itinerant court.

Ultimately, the Defence reluctantly agreed to an adjournment of the Preliminary Hearing. However, in doing so the Defence explicitly, in an email to Crown counsel, did not waive the accused’s

section 11(

b) Charter rights. [ 23 ] I mention this course of events because it highlights issues which may arise regarding the Crown’s obligations at a Preliminary Hearing, especially in light of the Jordan decision. [ 24 ] The purpose of the Preliminary Hearing is two-fold; the primary purpose is to determine if there is sufficient evidence to commit a matter to trial. The ancillary purpose is one of discovery. [ 25 ] The Criminal Code of Canada , RSC 1985, c C-46 was amended in 2005 with a view to streamlining Preliminary Hearings.

Pursuant to s. 540(7), the Crown may lead evidence which, but for the section, would be inadmissible, providing that the evidence is determined to be “credible or trustworthy”. This

section is procedural in nature and provides an evidentiary shortcut for the Crown. [ 26 ] The 2005 amendments also imposed a requirement on the Defence to file a Statement as to Issues and Witnesses and provided for Focusing Conferences with a view to focusing the Preliminary Hearing on the issues in dispute. [ 27 ] Prior to the 2005 amendments the Crown could not be compelled to call particular witnesses. Which witnesses and how many witnesses the Crown would call were matters of Crown discretion.

It was open to the Defence to call witnesses at a Preliminary Hearing and, under certain circumstances, for the court to call witness to make them available to the Defence for cross-examination. The 2005 amendments do not change this. [ 28 ] The 2005 amendments are designed to streamline the Preliminary Hearing by providing evidentiary and procedural shortcuts.

While they do not detract from the two fold purpose of the preliminary hearing, they do not grant additional rights to the Defence which did not previously exist, such as the right to compel the Crown to call particular witnesses. [ 29 ] Having said that, the discovery purpose of a preliminary hearing is generally of benefit to both the Crown and Defence as it allows each to make informed decisions as the matter proceeds.

However, particularly in this post- Jordan regime, it would be unfair to penalize the Crown if it cannot proceed with a Preliminary Hearing because, for reasons beyond its control, a witness not required by the Crown but requested by the Defence is unavailable. [ 30 ] In the circumstances of this matter, I appreciate that the Defence stated that it was not waiving the accused’s s. 11(

b) Charter rights . However, at the same time, the Defence was insistent on witnesses being called who were unavailable and that the Crown did not require. Proceeding with the Preliminary Hearing with the witnesses that were available and adjourning it to a later date was not a solution to the issue and may well have resulted in even greater delay given the travel

schedule of the resident judges of this Court who would have been seized with this matter. VII. Delay Due to this Application: i. Dec.17, 2015 to present [ 31 ] The Defence indicated on October 6, 2015 that he would be bringing an application for a stay of proceedings due to delay. The application was initially set for December 17, 2015.

[32] The application was adjourned a number of times because the Defence was unable to obtain transcripts from four courtappearances. There were numerous court appearances where the matter was simply adjourned because the transcripts continued to beunavailable. The application was heard on October 12, 2016, just over one year from when the Defence indicated its intention to bring adelay application. [33] This raises the issue of the Record that is necessary to perfect an application of this type. It has long been the practice ofthis jurisdiction to require transcripts from all court appearances.

This requirement is understandable given the analysis which must beundertaken. [34] The court should be making decisions on the best evidence possible. In the case of determining what occurred in court, atranscript of the proceedings is the best evidence. However, for various reasons, a transcript is not always going to be available and theapplication must proceed on the basis of an Agreed Statement of Facts as to what transpired at a particular court appearance or onAffidavit evidence.

In other instances there may not be agreement as to what occurred at a court appearance and the court must makereasonable inferences and make a decision based on the evidence that is before it. The lack of availability of a transcript cannot be abasis for further delay in the application. [35] It is ironic that it is the time taken for this application to be heard which has pushed the matter over the 30 monthpresumptive ceiling in Jordan. [36] In my view it is not necessary to attribute to any particular party the delay relating to the preliminary hearing or thisapplication.

The circumstances are part of the context within which this application must be assessed and they inform the courtsdetermination on the reasonableness of the parties’ actions. VIII. APPLICATION OF THE TRANSITIONAL PROVISIONS: [37] The Supreme Court of Canada in Jordan set out the analysis to be applied to those cases that were in the court system priorto the release of the Jordan decision on July 8, 2016.

In such cases where the net delay exceeds the presumptive ceiling the Crown mustsatisfy the court that the time taken has been justified based on the parties reasonable reliance on the law as it previously existed. [38] This requires the Court to consider the factors set out in R. v Morin, (SCC), [1992] 1 SCR 771: a. the length of the delay; b. waiver of any time periods; c. reasons for the delay; d. inherent time requirements for the case; e. actions of the accused; f. actions of the Crown; g. limits on institutional resources; and h. prejudice to the accused. [39] There is no doubt that the delay in this matter is very lengthy however, much of this is attributable to the withinapplication.

While Defence counsel cannot be faulted for lack of transcripts, it is not reasonable for this application to have been put offfor such a lengthy period of time so that transcripts could be obtained. [40] Similarly, the delay attributable to getting the matter to preliminary hearing was caused to some extent by the efforts of theCrown to call all of the witnesses identified by the Defence.

[ 41 ] Limits on institutional resources, particularly a lack of judicial resources, also contributed to the delay. [ 42 ] While there is inherent prejudice in a lengthy delay, there is no evidence of specific prejudice in relation to this accused. He is on judicial interim release with minimal conditions. There is no suggestion that evidence favourable to the Defence has deteriorated or gone missing.

On the contrary, the lengthy delay is likely to undermine the evidence of Crown witnesses. [ 43 ] The charge is serious and there is a societal interest in having the matter determined on its merits. [ 44 ] The application for a judicial stay is dismissed. [ 45 ] The matter will proceed to trial on March 9, 2017. Dated at the City of Iqaluit this 2 nd day of February, 2017 ___________________ Justice S. Cooper Nunavut Court of Justice

APPENDIX A Chronology of Appearances Date Event June 3/13 incident Ad arrested and charged with ACBH released on undertaking with court date of July 11 June 11/13 RCMP got update on injuries June 21/13 Ad arrested and charged with Agg.

Assault released on undertaking with court date of Aug. 22 July 16/13 initial disclosure provided (106 items plus 10 CDs) Aug.22/13 first appearance disclosure not ready adjourned to Sept. 9 Sept.9/13 Crown elected Indictment disclosure still being vetted matter was going to be set to Sept.23, Defence asked that it go to Oct.21 to allow time for proper review Sept.27/13 further disclosure provided (medical records) Oct.21/13 Defence requested adjournment so specific lawyer could be appointed and disclosure reviewed with Ad Defence counsel stated “its a bit more complicated than the usual matter adjourned to Nov.4 Nov.4/13 Defence counsel assigned (same counsel as that appearing on Oct. 21) Defence request for 2-3 week adjournment to review disclosure adjourned to Nov. 18 Nov.18/13 Ad elected J&J with prelim.

Prelim set for Feb.27/14 matter was to be set for pre-trial Jan.7/14 Defence filed stmt of issues/witnesses indicated a pre-trial was set for Jan.16 indicated a pre-trial was set for Jan.16 Feb.17/14 Defence requested criminal records of Crown witnesses

Feb. 18-19/14 Feb. 18-19/14 (Cont’

d) email exchanges in preparation for the prelim. Crown only had 2 of 8 witnesses requested by Defence under subpoena and felt the prelim would take longer than the one day scheduled if 8 witnesses were called. Defence suggested starting the prelim but the Crown did not want to split it Defence “consented” to the adjournment but expressly did not waive s. 11 (

b) rights Feb.15/14 focusing conference Feb.27/14 prelim set to June 5 th for one day June 5/14 prelim held. Committed to stand trial adjourned to Assignment Court July 14 July 14/14 Crown request to adjourn to August.

Crown awaiting results on bloodstain analysis adjourned to Aug.11 Aug.11/14 court advised matter would be proceeding judge alone and two days required court offered Dec. 15 D efence not available until new year, after Feb.5/15 no court dates available in Feb. or March due to major case no court dates in April Defence available in early May (4&5) but court not available Defence not available until Oct. Defence not available then until Oct.

Adjourned to Oct. 6&7/15 Oct.5/15 Adjourned to Oct.6 Oct.6/15 Crown application for an adjournment Crown had 3 witnesses, one of whom was not in attendance because he was in Nfld., on a fishing vessel the Crown had not subpoenaed the witness but had met with him the Friday before the matter was to proceed to trial and witness did not disclose that he was leaving the jurisdiction adjournment granted Defence indicated there would be an 11(

b) application on the next court date court indicated an 11(

b) application and a trial would not proceed on the same day adjourned to Dec.17/15 for s. 11 (

b) motion Dec.17/15 11(

b) application adjourned because the Defence had not received transcripts from 4 of the court appearances adjourned to Jan.18/16, to be spoken to Jan.18/16 missing transcripts not received despite numerous efforts matter set to Feb.15 Feb.15/16 Feb.15/16 (cont’

d) counsel agreed to set trial date, understanding that the 11(

b) application still needed to proceed court offered dates in Aug. Defence counsel not available, was available for specific dates in July set for Oct.12&13/16 Date Event

Mar.14/16 matter before the court to confirm trial date 3 transcripts for 11(

b) application not available a djourned to April 4 April 4/16 Set to October 12, 2016 Oct. 12/16 11(

b) application proceeded Date Event