R v. Jordan, 2022 QCCQ 9413

Kooktook c. R. 2022 QCCQ 9413 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal Division No: 635-01-019698-209 DATE: October 27, 2022 ______________________________________________________________________ BY THE HONOURABLE MARIE-CHANTAL BRASSARD, J.C.Q. ______________________________________________________________________ SANDY KOOKTOOK Applicant v.

HIS MAJESTY THE KING Respondent ____________________________________________________________________ RULLING ON APPLICATION TO STAY THE PROCEEDINGS-DELAY-SECTIONS 11b) and 24 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOM [1] ______________________________________________________________________ [ 1 ] Since the charge was laid in 2020, 736 days have elapsed at the time of the hearing. The presumptive delay, according to the decision R v. Jordan [2] from the Supreme Court, is 540 days.

The defence has presented an application to have the proceedings stayed as the rights of the applicant to have a trial within a reasonable delay has been infringed under

section 11b) of the Canadian Charter of rights and freedoms . OVERVIEW [ 2 ] Most of the delays were already characterized by the Court when the arguments on this motion were presented. [ 3 ] From the arraignment on October 21, 2020, to July 22, 2021, first date scheduled for the trial, delays are qualified as institutional.

Therefore 274 days will be calculated as such. [ 4 ] On the date set for the trial, the Crown asked for a postponement based on the impossibility to fulfill the disclosure of evidence as the DNA comparison was not yet completed. [ 5 ] The audio of the postponement reveals that a trial could have been scheduled on the 30 th of September 2021 but the applicant was unavailable until November 2021.

So, the trial was remanded to the next available date, which was December 22, 2021. [ 6 ] For calculation purposes, 70 days will be added to the institutional delays but 83 days will be subtracted from the total elapsed time as it was a delay caused by the unavailability of the applicant. [ 7 ] Although the parties agree on these characterizations, they dispute how one particular delay should be calculated and how another delay should be qualified. MATTERS IN DISPUTE 1. What portion of the delay from December 22, 2021, to July 18, 2022, should be considered as a discrete event? (Pandemic.) 2.

How should the delay between July 18, 2022, to today be characterized? (Cancellation of the court.) 3. Did the Crown refute the presumption of unreasonable delay and if so, has the Defence shown that the overall remaining delay is unreasonable? Analysis 1. PANDEMIC [ 8 ] On December 22, 2021, the trial was then remanded because of the pandemic measures then prevailing in Nunavik. Court activities were then very limited as travelling and access restrictions were imposed by the Nunavik Regional Board of Health and Social Services Director of public health.

Both parties agree that the Covid-19 pandemic is an exceptional circumstance. It is noted that the

Court house in Kuujjuaq in December 2021 was then closed and no remote activities could be held within the premises. [ 9 ] The characterization of the delay raises no debate as explained before since both parties agree that it was a discrete event. [ 10 ] In R. v Jordan [3] , the landmark decision from the Supreme Court, exceptional circumstances are defined: [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [ 11 ] As stated by this Court in other cases or by other Tribunal, [4] the pandemic was outside the Crown’s and the judicial system’s control and could not reasonably have been foreseen.

The effect of the pandemic on the judicial system was not reasonably avoidable. [ 12 ] The suspension of regular court operations in 2020, in accordance with the “COVID-19 directives” is a well-known fact and as well as the implementation of the sanitary measures resulting from the pandemic. And the situation in Nunavik was not different. [ 13 ] More specifically, there was a period of time in 2020 where due to travelling restrictions in Nunavik, only detainees’ files could be dealt with, period which lasted for more than 6 months.

This period was followed by about a year of remote trials or reduced activities as the court was either not travelling at all or not travelling to communities other than Kuujjuaq. [ 14 ] Then again, after the Quebec Court had resumed activities in Nunavik, new limitations were ordered in November and December 2021 considering the increasing numbers of infections in the Inuit’s Communities.

All this created an important backlog of criminal cases which impacted the ability of the court to offer available dates to parties. [ 15 ] When the Court first did reconvene activities, it was unrealistic to expect the Court to offer closer dates for the trial as soon as the Court was gradually resuming its activities under certain conditions, whereas it has been prioritizing and postponing cases since the previous March 15, 2020.

So imagine the impact of the second period of limited activities shortly following the recent return to “normal” court. [ 16 ] The file of the applicant has never been prioritized earlier as he was not detained preventively. [ 17 ] The discrete event is undisputable but what delays should be attributed to the effect of the pandemic? Should the Court considers only a portion [5] ? Should the Court subtract the entire delay from December 22, 2021, to July 21, 2022? 208 days or less? [ 18 ] In R v.

Boulanger, the Supreme Court did state that some circumstances may justify apportioning responsibility for delay among these participants rather than attributing the entire delay to the defence [6] . And then, the Court decided to apportion responsibility, out of fairness and reasonability, and to attribute up to half of the delay to each party as they both, by their conducts, had contributed to the delay. [ 19 ] As mentioned before, the Court did not resume activities until September 2020 and even then, such activities were reduced to the minimum.

The Court officially returned in person in Nunavik during fall 2021. That created an important back log. When the second limitation of activities occurred, it simply added files to an already very full docket. [ 20 ] The Court does consider that, in these circumstances, the postponement was inevitable and caused by the pandemic situation in Nunavik. It cannot be attributed to any of the participants. [ 21 ] Therefore, as there was no other date available before July 21, 2022, the entire delays will be considered as exceptional circumstances and will be deducted from the net delay. 2.

COURT CANCELLATION [ 22 ] Now, dealing with the postponement from July 21, 2022, to today (101 days) where the court was cancelled due to unavailability of judicial resources. It will be considered as institutional delay. As Justice Ladouceur wrote in R. v. Gilpin [7] at par 39 : Ce délai ne résulte ni des actions de qui que ce soit, ni de l’allocation de ressources au système judiciaire. [ 23 ] The Court of Appeal in Robidoux c. R [8] came to the same conclusion.

Court cancellation cannot be considered as a discrete event when it is the lack of resources that led to the postponement: D’abord, un événement distinct doit être imprévisible ou inévitable, non seulement pour le ministère public, mais également pour le système de justice dans son ensemble. [ 24 ] Although, in certain circumstances, as highlighted in that same decision, the unexpected closure of a court room could be

characterized as exceptional circumstance, for example if caused by sudden illness of the judge, but it is not the case here. 3. DELAYS [ 25 ] The Court concludes that the Crown has refuted the presumption of unreasonable delay as, when delays attributed to defence or to discrete events are deducted, the remaining delay is 445 days. [ 26 ] Therefore, the onus is shifting on the Defence. Has the Defence shown the overall remaining delay is unreasonable? [ 27 ] Once again, the Supreme Court provides guidance in R v.

Jordan [9] : If the total delay from the charge to the actual or anticipated end of trial (minus defence delay or a period of delay attributable to exceptional circumstances) falls below the presumptive ceiling, then the onus is on the defence to show that delay is unreasonable. To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have.

We expect stays beneath the ceiling to be rare and limited to clear cases. [ 28 ] The evidence adduced does not convince the Court that the delay is unreasonable. CONCLUSION [ 29 ] The motion to stay the proceedings is dismissed. __________________________________ MARIE-CHANTAL BRASSARD, J.C.Q. Me Simon Gosselin Attorney for the Applicant Me Franceline Lamoureux-Auclair Attorney for the Respondent Date of hearing: October 25, 2022 October 27, 2022