R. v. Kolola, 2013 NUCA 04

In the Court of Appeal of Nunavut Citation: R. v. Kolola, 2013 NUCA 04 Date: 2013-02-19 Docket: 09-10-003-CAP Registry: Iqaluit Between: Pingoatuk Kolola Appellant (Respondent) -and- Her Majesty The Queen Respondent (Applicant) _______________________________________________________ The Court: The Honourable Mr. Justice Ronald Berger The Honourable Mr. Justice J.D. Bruce McDonald The Honourable Madam Justice Myra Bielby Memorandum of Judgment Application to Dismiss the Appeal for Want of Prosecution

MEMORANDUM OF JUDGMENT (NOTE: This document may have been edited for publication) Berger J.A. (for the Court) I. INTRODUCTION [1] This is an application brought by the Crown respondent to strike an appeal. The proffered grounds are that an insufficient number ofappeal books were filed with the Registrar in a timely fashion and the Notice of Appeal does not contain “any grounds of appeal”. [2] The additional appeal books were delivered to the Crown on December 19, 2012.

An Amended Notice of Appeal was filedyesterday. [3] All of the foregoing is said to be in breach of an order endorsed on the Court file by Kilpatrick J.A. on July 27, 2012, ordering thatcounsel for the appellant “will file immediately an Amended Notice of Appeal and will order enough copies of the missing appeal booksand will file those immediately after receiving same.” [4] The thrust of the applicant’s submission is that delay of this kind ought not to be tolerated having regard to the chronology of eventsin the instant case.

Namely, a trial culminating with a finding of guilt of first-degree murder on March 12, 2010, with respect to eventsthat occurred on November 5, 2007, and confirmation that counsel for the appellant was counsel of record as of November 8, 2011. [5] In urging the Court to strike the Notice of Appeal, the Crown relies upon R v Oakoak, 2011 NUCA 4 , 2011 NUCA 04,[2012] 1 CNLR 409 [Oakoak], and R v VanEindhoven, 2012 NUCA 5 , 2012 NUCA 05, 94 CR (6th) 168. [6] R. v. Oakoak was a

summary conviction appeal. The appellant had been granted bail pending appeal. The issue on appeal waswhether he ought to be re-incarcerated. Returning an offender to custody is inevitably a hardship. That is not the case here. No requestfor special accommodation as occurred in Oakoak is sought in the case at bar.

It follows that Oakoak on its facts is not particularlyhelpful in resolving the present motion. [7] As to the applicability of R v VanEindhoven, the appellant in that case was convicted of second-degree murder in October 2006.The Court expressed its concern that the appeal did not come before a panel of the Court until February 14, 2012. The Court made clearthat the reasons for the delay were “largely unexplained”. [8] The instant case does not suffer from quite so lengthy a delay.

Nonetheless, on a number of occasions this Court and others inNunavut have spoken to the deleterious effect on the administration of justice of a failure to perfect appeals and achieve finality in respectof serious criminal acts that impact on the community, its citizens, and the accused, all of whom have a real interest in such matters. [9] Counsel for the Appellant was put on notice in July 2012, that the Crown intended to bring a motion to strike the appeal for thereasons now advanced in support of the present application.

It is not unfair to say that counsel for the appellant should have proceededwith greater dispatch. [10] That said the appeal books, as indicated, are now filed. The Crown has had them since December 19, 2012. The Notice of Appealhas now been amended. In these circumstances, the application is dismissed subject to the following directions:

1. The appellant’s factum and supporting materials shall be filed and served by March 8, 2013. 2. The respondent’s factum and supporting materials shall be filed and served by May 10, 2013. 3. The oral argument shall be heard at the September 2013, sittings of the Court in Iqaluit. Application heard on February 12, 2013 Memorandum filed at Iqaluit, Nunavut this 19th day of February, 2013 ______________________ Berger J.A. Appearances: N.E. Devlin for the Respondent (Applicant) T. Boyd for the Appellant (Respondent)