R v Baasch, 2023 NUCA 7

ᓄᓇᕘᒥ ᐅᓐᓂᓗᖅᓴᖅᑐᓄᑦ ᐃᖅᑲᖅᑐᐃᕕᒃ Nunavunmi Apiqhuidjutainut Uuktuffaarutit Nunavut Court of Appeal Cour d'appel du Nunavut Citation: R v Baasch, 2023 NUCA 7 Date: 20230621 Docket: 08-23-001-CAS Registry: Iqaluit Between: His Majesty the King Respondent - and - Emma Baasch Appellant - and - Corporal Andrew Kerstens Respondent - and - The Director of Public Prosecutions Respondent _______________________________________________________ The Court: The Honourable Justice Edith Campbell The Honourable Justice Kevin Feehan The Honourable Justice Anne Kirker _______________________________________________________

Memorandum of Judgment Appeal from the Contempt of Court Hearing by The Honourable Justice P. Bychok Dated the 13th day of July, 2022, August 2, 2022, December 14, 2022 ( 2022 NUCJ 47 , Docket: 08-21-397) _______________________________________________________ Memorandum of Judgment _______________________________________________________ The Court: I. Overview [ 1 ] Emma Baasch, a member of the Nunavut bar and Crown counsel employed by the Public Prosecution Service of Canada, was acquitted by a justice of the Nunavut Court of Justice on a citation for criminal contempt of court.

In the course of the hearing judge’s reasons for acquittal ( 2022 NUCJ 47 ) he made adverse obiter comments, including at paragraphs 30 to 33, concerning Ms Baasch’s actions, intent, ethical obligations, and professional conduct in the matter of R v Campbell et al . Ms Baasch in essence seeks to appeal from these comments in the reasons. Ms Baasch’s co-accused Cpl Andrew Kerstens is a respondent on the appeal. [ 2 ] The appeal is dismissed. We do, however, take the opportunity to review the facts and reasons of the hearing judge for the assistance of the parties. II. Facts (

a) Events leading to contempt citation [ 3 ] R v Campbell et al was scheduled to proceed on July 13, 2022 at 9:30 am in the Nunavut Court of Justice in Iqaluit. On the afternoon of July 12, Ms Baasch advised defence counsel that the Crown would likely enter a stay of proceedings the next morning, as the Crown had not been able to locate and interview its two key witnesses. Upon arriving at the courthouse on the morning of July 13, Ms Baasch found one of the witnesses present at the courthouse with his grandmother.

The other Crown witness had still not been located, so neither of the Crown’s essential witnesses had been interviewed by counsel. [ 4 ] Ms Baasch advised defence counsel now that one witness was in attendance, she would be seeking an adjournment of the trial to properly interview that witness and continue attempts to locate the second witness.

Defence counsel indicated she would attempt to locate her client as she had advised him the Crown would likely stay proceedings and he was not currently in attendance at the courthouse. [ 5 ] Ms Baasch asked Cpl Kerstens of the Iqaluit RCMP to attempt to locate the second witness. He determined during the course of the morning that the second witness had moved to Pond Inlet and would not be attending the trial on that date. [ 6 ] During this time, Ms Baasch began to interview the first Crown witness who disclosed he was “concerned for his safety but willing to proceed with the prosecution”.

Discussions with the grandmother indicated that Mr Campbell had tried to bribe her to convince her grandson to drop the charges against Mr Campbell. Ms Baasch confirmed with the grandmother that she was willing to speak to the police about those actions. Ms Baasch then asked Cpl Kerstens for his assistance at the courthouse. [ 7 ] When 9:30 am arrived, neither Mr Campbell nor a co-accused were in attendance and the matter was stood down. [ 8 ] Ms Baasch advised Cpl Kerstens about the allegations made by the grandmother, who was willing to speak to police.

[ 9 ] Shortly before 10:00 am, Cpl Kerstens interviewed the first Crown witness and the grandmother, who reiterated Mr Campbell’s attempt to bribe the grandmother to have the witness drop the charges. He concluded that both “were extremely fearful of Mr. Campbell” and concerned for their safety. [ 10 ] Ms Baasch and Cpl Kerstens discussed the allegations made by the witness and the grandmother, and Ms Baasch formed the opinion that Mr Campbell’s actions appeared to amount to an offence under the Criminal Code , RSC 1985, c C-46 .

She said in her opinion Mr Campbell should be arrested and held for a show cause hearing if he attended at the courthouse. [ 11 ] Ms Baasch advised defence counsel of the situation and in particular that the police would remain at the courthouse to arrest Mr Campbell if he attended. It was understood that in any event the trial would not proceed. [ 12 ] Shortly after 10:00 am, Mr Campbell entered the courthouse. Ms Baasch entered the courtroom to advise defence counsel that her client had arrived. Cpl Kerstens approached Mr Campbell outside the courtroom and asked to speak to him.

Mr Campbell hurried past and walked into the courtroom as Cpl Kerstens was advising him that he was under arrest. [ 13 ] Cpl Kerstens entered the courtroom and noted that all proceedings were adjourned. [ 14 ] Mr Campbell spoke to his defence counsel. After some discussion, Cpl Kerstens approached Mr Campbell and his counsel advising it was his intention to arrest Mr Campbell. Defence counsel requested an opportunity to speak further with her client and she was allowed to do so in a private consultation room. When the consultation was complete, defence counsel inquired about the proposed plan for Mr Campbell.

Cpl Kerstens advised that since he understood the trial was not going to proceed, he intended to arrest Mr Campbell. He then advised Mr Campbell of the details of his arrest, advised him of his Charter rights and explained those rights to him in the presence of defence counsel. He then removed him to the Iqaluit detachment, believing the case was to be adjourned. [ 15 ] When the trial judge re-entered the courtroom that morning, defence counsel explained that two of the three co-accused were present but that the Crown would be requesting an adjournment.

She also advised that Mr Campbell was not present because he had been arrested on new charges and taken to the Iqaluit detachment. Ms Baasch added: “Mr.

Campbell is now in custody but was not in custody on these matters previously”. [ 16 ] Counsel said before us that Ms Baasch was, appropriately and justifiably, very careful about the amount of information she provided the trial judge in order to avoid improperly tainting Mr Campbell’s proceeding with any information that the accused had been tampering with the evidence, bribing potential witnesses. [ 17 ] The trial judge asked the court clerk to direct Cpl Kerstens to return to court, bringing Mr Campbell with him. He then stood down court for a second time.

The trial judge’s request was passed to the Iqaluit detachment at approximately 10:40 am. Cpl Kerstens was absent at the time attending a pharmacy to obtain a suboxone prescription required by Mr Campbell. Cpl Kerstens was notified of the request to return Mr Campbell to the courthouse at approximately 11:20 am and re-attended shortly after 11:39 am. [ 18 ] Once Mr Campbell was returned to the courtroom, the proceedings resumed and the trial was adjourned to December 2022.

In total, the arrest of Mr Campbell interrupted the proceedings for approximately 90 minutes. [ 19 ] The trial judge then advised Cpl Kerstens that he would be cited for contempt and asked him why he thought he had lawful authority to arrest Mr Campbell in the courthouse while he was “in the jurisdiction of the court, which means under the protection of the court” and why he thought he could override an order of the court that Mr Campbell appear that morning at 9:30 am. Cpl Kerstens indicated he was aware that Mr Campbell was required by the condition of his bail order to attend court for trial that morning.

Ms Baasch did not further comment at this time. [ 20 ] The contempt matter was put over until 2:00 pm at which time Cpl Kerstens asked to obtain the services of a lawyer. It was then adjourned to August 2, 2022. [ 21 ] On return of the show cause hearing on August 2, counsel for Cpl Kerstens advised the hearing judge of further details concerning Mr Campbell’s arrest and explained his actions. Counsel advised that Cpl Kerstens had discussed this matter with Ms Baasch and it was understood between them that Mr Campbell would be arrested.

The judge asked whether the understanding was that the arrest should take place outside or inside the courthouse. He was advised that Cpl Kerstens said it would occur as Mr Campbell entered the court. At this point, the judge asked that Ms Baasch be contacted immediately, advising that he was “considering citing her for contempt”.

He then said: . . . the fact that I’m hearing about her mutual understanding and discussions with Corporal Kerstens for the first time from you when she was present in the courtroom on the date in question and as an officer of the court did not communicate any of that information to me, is one of the reasons why I have [a representative of the Crown] attempting to contact her. [ 22 ] Ms Baasch was on vacation and the matter was again adjourned to December 14, 2022.

Ms Baasch was never formally cited for contempt before the hearing. [ 23 ] Ms Baasch asked to supplement the Appeal Record to add certain correspondence. As that correspondence was already part of the original file and brought to the attention of the hearing judge, the application is allowed. Through counsel, Ms Baasch and Cpl Kerstens requested particulars of the judge’s concern on September 20, 23, and twice on November 14, 2022.

On November 16, 2022, the Court’s executive legal officer responded that the “Justice . . . has asked me to advise that all particulars can be found in the transcripts of the proceedings held to date”. At no time before December 14, 2022 was Ms Baasch advised about the court’s particular concerns and why she might be held in contempt. [ 24 ] The December 14, 2022 hearing itself was brief. Ms Baasch apologized for the delay caused by Mr Campbell’s arrest and admitted the arrest could have taken place after court.

Counsel submitted that Cpl Kerstens had always intended to deal appropriately with Mr Campbell, including allowing him to speak to counsel prior to being taken from the courthouse.

[25] Following submissions, the hearing judge said: I’ll depart from my prepared decision which . . . is being edited right now. Had the court received a full, frank, and complete explanationas to what was going on on July 13th on July 13th, we would not be here today; but that’s not what happened on July 13th and I’lladdress that in my decision which I turn to now. (

b) Hearing judge’s reasons [26] After the comments above, the hearing judge read his prepared reasons for decision.

He said: The arrest was a direct interference with the ability of the court to continue to deal with the matter which was actively before it, and itfrustrated the court in its ability to deal with the matter in a timely fashion. [27] The hearing judge said he was addressing a citation for criminal contempt because “the actions of state actors in arresting aperson whose matter was actively before the courts . . . prevented the court from continuing to deal with the case”. [28] The judge said criminal contempt engages both mens rea, criminal intention or recklessness, and actus reus, a wrongful act.He acknowledged that contempt of court “should be exercised with scrupulous care and only when the circumstances are clear andbeyond reasonable doubt”: Canadian Judicial Council, Some Guidelines on the Use of Contempt Powers, 2001, p 3.

He said the contemptof court in this case “happened both in the courtroom and just outside the courtroom doors” and was therefore committed in the face ofthe court, in facie, as well ex facie, not in the face of the court. [29] He said Ms Baasch and Cpl Kerstens “interfered improperly with the Court’s ability to continue to deal with Mr. Campbell’scase and in the process openly and publicly violated the integrity of the Nunavut Court of Justice”.

He did acknowledge that “police andprosecutors are granted considerable discretion [in] how to exercise” their powers. [30] The judge observed that in cases of emergency or upon request for assistance by the court, police may properly enter acourtroom to restore order or effect an arrest.

He said short of those exigencies, the police “have no business, no place, and no role toassert any purported authority in a courtroom”, and that would constitute improper interference with the operation of the court. [31] He said it is “a criminal contempt in Canadian law to prevent an accused, complainant, or witness from participating in ajudicial proceeding”: Newfoundland (Attorney General) v NAPE, (SCC), [1988] 2 SCR 204, 212-213, 44 CCC (3d)186.

He found the actions of Ms Baasch and Cpl Kerstens were “a flagrant and public interference with, and violation of, the Court’sactive jurisdiction” over Mr Campbell, and they had both committed the actus reus of criminal contempt. [32] Turning to mens rea, the hearing judge found that neither Ms Baasch nor Cpl Kerstens intended to bring “public disdain uponthe Court”. But he said their actions were “indeed reckless, and they reveal a stunning lack of judgment”.

After finding that Ms Baaschand Cpl Kerstens had acted recklessly, essentially finding all the elements of criminal contempt, the hearing judge reversed course andsaid the mens rea was “not to the extent required to convict . . . for criminal contempt”. He found them not guilty. [33] The hearing judge then went on, clearly in obiter, to criticize Ms Baasch’s ethics and professional conduct. He said she had anethical duty “of complete candour” to bring relevant information to the attention of the court, which she did not do.

He criticized her fornot advising the court more fully of the circumstances surrounding the offence. [34] Whether or not the hearing judge recognized it, characterizing Ms Baasch’s conduct as unethical and unprofessional in thisway required Ms Baasch to report herself to the Law Society of Nunavut. (

c) Ms Baasch’s appeal [35] Ms Baasch appealed the decision. [36] In case managing this appeal, Slatter JA of this Court set two preliminary questions: 1) Can an accused appeal an acquittal? 2) Given that the appeal is from the judgment, not the reasons, could the Court give any effective remedy? III. Parties’ Positions [37] Ms Baasch notes that the judge’s reasons for decision conflict with the result. The reasons make “all the findings necessary toenter a conviction” but then stop “just short of reaching that result only by finding a non-existent legal distinction between types ordegrees of recklessness”.

She says recklessness as to the impact of actions is a culpable state for contempt, citing MacMillan Bloedel Ltdv Simpson (1994), (BC CA), 113 DLR (4th) 368, 381 (BCCA), affd on other grounds, (SCC), [1995]4 SCR 725, 103 CCC (3d) 225. She says the hearing judge found she had committed the actus reus and effectively had the mens rea ofcontempt and this “has left [her] in legal jeopardy that is at least equivalent to the jeopardy she faced from conviction for contempt”.

Shesubmits this is a miscarriage of justice and that the process was unfair, especially given the hearing judge’s refusal to provide particularsof his concerns, despite many requests, prior to the final attendance to show cause. She says Mr Campbell’s arrest only led to a one-hourdelay in proceedings which, once re-convened, were adjourned as expected and neither her conduct nor its impact justified the use ofcontempt powers. [38] Cpl Kerstens supports Ms Baasch’s position. He submits the judgment of the hearing judge “was, in substance, a conviction”

and it is the substance of the order and not the form that should prevail, citing R v McCullough (1995), (ON CA), 82OAC 63, para 24, 24 OR (3d) 239. He agrees that the decision has resulted in a miscarriage of justice because there was no legal basisfor the use of the contempt power. He says that power is to be exercised only for serious cases and not where the conduct has little or noeffect on the ultimate administration of justice: R v Glasner (ON CA), [1994] 19 OR (3d) 739, 753-754, 119 DLR(4th) 113 (CA).

Additionally, Cpl Kerstens says the hearing judge’s commentary on his actions may have exposed him to the jeopardy ofdisciplinary sanctions under the RCMP Code of Conduct. [39] The Director of Public Prosecutions submits that the contempt proceedings were “a disproportionate response to the actionsand decisions of Cpl. Kerstens and [Ms Baasch]” and were “an unnecessary escalation of the matter”, “exaggerat[ing] the impact of theactions of Cpl. Kerstens and [Ms Baasch] on the administration of justice”.

The Director says the hearing judge failed to considerwhether responses other than contempt proceedings were appropriate and that in this case the “improper and disproportionate use of thecontempt proceedings impugns prosecutorial independence”.

The Director says even if the court’s process was impacted by the lawfularrest of Mr Campbell “it was minimal and remedied when he was returned to the courthouse” one hour later, and less drastic approachesshould always be considered, citing British Columbia (Securities Commission) v Palm (1991), (BC SC), 82 DLR (4th)758, 763 (BCSC); and see R v Peel Regional Police Service (2000), (ON SC), 149 CCC (3d) 356, paras 134, 142(Ont Sup Ct). [40] The Director argued forcefully that the process followed by the hearing judge undermined constitutionally protectedprosecutorial independence and discretion: Krieger v Law Society of Alberta, 2002 SCC 65, paras 30, 46, 47, [2002] 3 SCR 372; R vNixon, 2011 SCC 34, para 20, [2011] 2 SCR 566.

The Director says Ms Baasch’s actions fell within “the scope of what is properlyconsidered the independent exercise of Crown discretion”. The Crown should not fear the law of contempt “would be so broadlyinterpreted as to capture lawful decisions made in the public interest”. The Director says given Mr Campbell’s trial was to be adjourned,and there was a risk he would continue to threaten and attempt to bribe the witness, the decision by Ms Baasch to recommend theimmediate arrest of Mr Campbell was well within the lawful exercise of her prosecutorial discretion. IV.

Decision [41] We have concerns about the way the hearing judge dealt with this matter.

However, criminal appeals are statutory in natureand there are no statutory routes for an accused to appeal an acquittal for criminal contempt. [42] It has long been a settled principle that all criminal appeals are statutory: Mills v The Queen, (SCC), [1986] 1SCR 863, 959, 26 CCC (3d) 481; R v Meltzer, (SCC), [1989] 1 SCR 1764, 1773, 49 CCC (3d) 453; and see R vAwashish, 2018 SCC 45, para 10, [2018] 3 SCR 87; R v Irngaut, 2020 NUCA 4, para 20. [43] This Court is a “superior court of record with all the jurisdiction, powers and authority of such a court”: Judicature Act, CSNu,c J-10, s 15(2), with inherent jurisdiction to control its own processes: Mazhero v Nunavut, 2010 NUCA 1, paras 13-14, 2010CarswellNun 4, citing MacMillan Bloedel (SCC), paras 15, 33.

However, its substantive criminal jurisdiction is circumscribed by theCriminal Code: R v Zurowski, 2003 ABCA 174, para 4, 17 Alta LR (4th) 1. [44] Additionally, appeals lie from orders or judgments, not reasons: R v Sheppard, 2002 SCC 26, para 4, [2002] 1 SCR 869; R vElliott, 2014 ABCA 431, para 4, 13 Alta LR (6th) 407; Ratiopharm Inc v Pfizer Canada Inc, 2007 FCA 261, para 6, 60 CPR (4th) 165. [45] In this case, Ms Baasch was acquitted of criminal contempt as a final order or judgment. The Criminal Code provides nostatutory right of appeal for an accused who is acquitted.

The Crown has a statutory right of appeal, including for indictable offences onquestions of law only, pursuant to s 676(1)(

a) of the Criminal Code; see R v George, 2017 SCC 38, para 17, [2017] 1 SCR 1021. [46] Provisions in the Criminal Code for

summary conviction appeals (ss 675(1.1), 813), indictable offences (ss 675(1) and (2)-(3)), or from the Nunavut Court of Justice (s 812(2)) do not provide for appeals by an accused who is acquitted. [47] Criminal contempt of court is provided for in s 9 of the Criminal Code.

Section 10 provides for an appeal when a court orjudge convicts a person for contempt and imposes a punishment. The defendant may appeal from the conviction or the punishment.There is no jurisdiction to read in a right of appeal, in this case from an acquittal, that Parliament did not intend to create: see R vBreault, 2023 SCC 9, paras 25-27. [48] In R v X (1974), (ON CA), 20 CCC (2d) 255, 256 (Ont CA), the court held that where the appellant hadreceived a “severe reprimand” from a trial judge, but there was no conviction for contempt, there was “nothing from which [an] appealcan be taken”.

Similarly, in R v Israel (1990), (MB CA), 68 Man R (2d) 126, paras 3, 6, 7 (CA), the court concludedthat a court’s disapproval of a lawyer’s conduct was not appealable in the absence of a conviction, saying there was “neither a dispositionfrom which an appeal can be brought nor one that can be quashed”. [49] There is merit to the submission that Ms Baasch would have been better off, for the purposes of appeal, if she had beenconvicted. However, we have no jurisdiction to hear this appeal by an accused from an acquittal on the merits.

Ms Baasch’s onlysubstantive remedy is to apply for leave to appeal to the Supreme Court of Canada, Supreme Court Act, RSC 1985, c S-26, s 40; seeSaskatchewan (Attorney General) v Lemare Lake Logging Ltd, 2015 SCC 53, para 13, [2015] 3 SCR 419. [50] With respect to remedy, s 686(1)(

a) of the Criminal Code grants jurisdiction to an appellate court to allow “an appeal againsta conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder”. [51] Section 686(4) outlines the powers of a court of appeal on an appeal from an acquittal, but this must be read as applicable onlyto an appeal by the Crown, the sole party with a right of appeal from an acquittal.

It may dismiss the appeal, allow the appeal and order anew trial or, except where the court was composed of judge and jury, enter a verdict of guilty with respect to the offence of which theaccused should have been found guilty and pass sentence, or direct the trial court to impose a sentence that is warranted in law.

[52] Section 686(8) then provides that a court of appeal “may make any order, in addition, that justice requires”, a remedy that isto be given a broad

interpretation: R v Provo, (SCC), [1989] 2 SCR 3, 20, 49 CCC (3d) 417. The additional order mustarise out of a triggering provision of s 686, must be truly ancillary to that provision, and must be in the interests of justice: R v RV, 2021SCC 10, para 74, 402 CCC (3d) 295; see also R v Thomas, (SCC), [1998] 3 SCR 535, paras 10-18, 130 CCC (3d) 225;R v Hinse, (SCC), [1995] 4 SCR 597, paras 30-33, 102 CCC (3d) 289. [53] These remedy provisions, no matter how broadly interpreted, fail on the first step.

They only apply if the Court hasjurisdiction to hear an appeal from an acquittal, and in this case it does not. [54] As indicated, there is no effective remedy available to Ms Baasch other than seeking leave to appeal to the Supreme Court ofCanada. V. Conclusion [55] The appeal is dismissed. Appeal heard on May 9, 2023 Memorandum filed at Iqaluit, Nunavut this 21st day of June, 2023 Authorized to sign for: Campbell J.A. Feehan J.A. Kirker J.A. Appearances: M. Covan for the Respondent The Director of Public Prosecutions R. Frater, K.C. for the Appellant R. Beeman for the Respondent Corporal Andrew Kerstens C.

Giordano

for the Amicus Curiae