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Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE


Cour de justice du Nunavut

Citation: R. v. I.N., 2018 NUCJ 9

Date: 20180409
Docket: 17-15-72
Registry: Coral Harbour

Crown: Her Majesty the Queen


-and-

Accused: I.N.

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Gary McGee


Counsel (Accused): Patrick Smith

Location Heard: Coral Harbour, Nunavut


Date Heard: March 6, 2018
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)

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)


2

DISCLAIMER PAGE

Anonymized Judgment Disclaimer:

This judgment has been anonymized to comply with legislative


requirements or at the discretion of the authoring Justice to protect
vulnerable parties. Letters have been assigned at random.
3

I. BACKGROUND

[1] The accused, I.N., is charged with two sexual offences alleged to
have happened in Coral Harbour between October 2, 2014 and June
1, 2015. Defence Counsel, Patrick Smith, has filed an application
pursuant to sections 11(b) and 24(1) of the Canadian Charter of
Rights and Freedoms. 1 He seeks a judicial stay of proceedings
because he says the accused’s right to a trial within a reasonable time
has been violated. The Crown prosecutor, Gary McGee, opposes the
application.

[2] The accused was scheduled to stand trial on March 5, 2018. Given
the urgency of this application, I advised counsel that I would
communicate my decision early the following week with detailed
written reasons to follow. These are my written reasons for decision.

II. FACTS

[3] The basic facts of the case are not in dispute. The accused was
arrested on September 8, 2015 and was released. The police swore
the Youth Criminal Justice Act 2 Information on December 21, 2015.
The next court circuit to sit in Coral Harbour was on February 29,
2016. This was a five-month 22-day delay from the date of his arrest.
The accused pled not guilty that day and his trial was scheduled for
September 28, 2016. This resulted in a seven-month delay. On the
scheduled September 28 date, the trial was adjourned at Defence
request until March 6, 2017. This resulted in a five months seven-day
delay. The March 2017 circuit to the community was cancelled due to
a blizzard. As a result, the trial was rescheduled to the following
Coral Harbour circuit on September 20, 2017. This caused a further
six-month 15-day delay. I.N. was scheduled to stand trial on March 5,
2018. The delay in bringing this case to trial totals about 30 months.

III. ISSUE

[4] This Charter application turns on whether the delay in bringing this
summary conviction youth trial has been unreasonable. In my

1
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) [Charter].
2
Youth Criminal Justice Act, SC 2002, c 1.
4

respectful view, the delay in the circumstances of this case has been
reasonable.

IV. THE LAW ON PRE-TRIAL DELAY

[5] The new law on pre-trial delay post-Jordan 3 may be summarized as


follows. The Court first determines the length of total pre-trial delay. 4
The judge must then subtract delay either waived or caused solely or
directly by the Defence. 5 If the remaining net delay is more than “30
months for cases in the superior court (or cases tried in the provincial
court after a preliminary inquiry)”, 6 the delay is presumed to be
unreasonable. In Nunavut, 7 the remaining delay of more than 30
months for cases proceeding by an indictment or after a preliminary
inquiry is presumed unreasonable. The ceiling for summary charges
in provincial or territorial court is 18 months. 8 Past the 18 months
mark, as in this case, it is up to the Crown to justify that delay. 9

[6] Apart from Defence delay, the majority in Jordan decreed only one
other category which may be used to justify pre-trial delay:
exceptional circumstances. A circumstance is said to be exceptional if
it was reasonably unforeseeable or unavoidable and the Crown could
not reasonably remedy the resulting delay once the circumstance
arose. 10 Two examples of exceptional circumstances listed in Jordan
are discrete events and cases which are “particularly complex”. 11

[7] In R v Anugaa, I ruled that the Jordan category of exceptional


circumstances must be given a broad and liberal interpretation
grounded in Nunavut’s reality. 12 The unique cultural circumstances
and exceptional challenges found in Nunavut constitute a third Jordan
3
R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan]. Also see R v Cody,
2017 SCC 31, [2017] 1 SCR 659.
4
Jordan, ibid at para 47.
5
Ibid at paras 61-65.
6
Ibid at para 105.
7
The Nunavut Court of Justice is Canada’s only unified court. In other words, it combines the
superior and territorial courts which are separate elsewhere. Jordan’s provincial-superior court
distinction further highlights the challenges in applying Jordan in matters before the Nunavut
Court of Justice.
8
Jordan, supra note 3 at para 105. Also see the discussion about the determination of
appropriate ceilings for cases tried in the Nunavut Court of Justice in R v Dempsey & Oujukoaq
Fisheries Ltd, 2016 NUCJ 32 at paras 17-30, 2016 CarswellNun 35.
9
Jordan, ibid.
10
Ibid at para 69.
11
Ibid at para 71.
12
R v Anugaa, 2018 NUCJ 2 at para 48, 2018 CarswellNun 2.
5

subcategory of exceptional circumstances. 13 I will say more about


this issue in my analysis of Defence Counsel’s submissions.

V. POSITIONS OF THE PARTIES

[8] I heard oral argument in Iqaluit on February 9, 2018. The lawyers


also had provided the Court earlier with written submissions.

[9] Mr. Smith submitted that I ought to reconsider my recent decision in R


v Anugaa concerning pre-trial delay. He stated that the creation of a
third category of exceptional circumstances justifying delay will create
a two-tier set of Charter protections disadvantaging Nunavummiut.

[10] Mr. Smith also encouraged the Court to follow R v J.M., 14 where the
trial judge ruled there should be lower presumptive ceilings on
criminal charges in youth court. Mr. Smith stated that however one
may attribute the reasons for delay, the remaining delay exceeds the
presumptive ceiling and is unreasonable.

[11] Mr. McGee submitted that 159 days of delay were attributable to the
Defence and that 364 days of delay were exceptional. Mr. McGee
said the remaining pre-trial delay is 12 months and 21 days, which is
well below the presumptive ceiling. He said the Defence application
should be dismissed.

VI. ANALYSIS

[12] I will address in turn each one of Mr. Smith’s positions.

A. Has R v Anugaa created a two-tier regime of Charter protections?

[13] In my respectful view, Anugaa does not create a two-tier set of


Charter protections. The Charter is part of Canada’s constitution. It
enshrines the rights and freedoms of Canadians from coast to coast
to coast. Anugaa did not create a new and different Charter regime
for Nunavut.

13
Ibid.
14
R v JM, 2017 ONCJ 4, 344 CCC (3d) 217 [JM].
6

[14] As Mr. Smith acknowledged, the majority in Jordan specifically stated


the categories of exceptional circumstances are not closed. This is
what the Jordan majority said:

It is obviously impossible to identify in advance all


circumstances that may qualify as “exceptional” for the
purpose of adjudicating a s. 11(b) application. Ultimately, the
determination of whether circumstances are exceptional will
depend on the trial judge’s good sense and experience. The list
is not closed. 15

[15] This statement, I believe, recognizes that we do not live in an ideal


world. In Nunavut, blizzards not only happen, they are a way of life.
Planes go mechanical. Witnesses and accused persons are often
absent on medical travel. Seasonal hunts are a part of the traditional
way of life for many Nunavummiut. The expanded category of
exceptional circumstances in Anugaa merely recognizes and respects
that reality. This Court applied the Jordan analysis in Anugaa.

[16] I also do not agree with Mr. Smith that Anugaa shifts the burden of
delay onto the backs of accused persons. There is no culture of delay
in the Nunavut Court of Justice. Despite innumerable challenges, this
Court has an enviable and consistent record of timely case
disposition. 16 Therefore, this part of the Charter application fails.

B. R v J.M. and a lower presumptive delay ceiling in Youth Court

[17] I turn now to Mr. Smith’s argument that I ought to follow R v J.M. and
recognize a lower presumptive Jordan ceiling in Youth Court. I
cannot agree. R v J.M. is a trial-level decision of an Ontario court. It
is not a binding precedent on a Nunavut judge. I also do not find the
reasoning in that case to be persuasive.

[18] Judges of the Nunavut Court of Justice have always given priority to
Youth Court matters, and we shall continue to do so. The Supreme
Court in Jordan did not address the issue of pre-trial delay in Youth
Court. Parliament has not legislated on the subject. Therefore, this
argument, too, must fail.

15
Jordan, supra note 3 at para 71.
16
Nunavut continues to have one of the shortest median criminal case processing times in the
country. Benjamin Perrin and Richard Audas, Report Card on the Criminal Justice System #2
(Macdonald-Laurier Institute, 2018) at 31.
7

C. Delay attribution

[19] The majority in Jordan stated that judges ought not to indulge in
micro-counting. 17 However, judges must still attribute delay.

[20] The initial five-month and 22-day delay (the equivalent of 175 days)
from arrest to first appearance arose because of the itinerant
travelling circuit court schedule. I attribute that delay to the third new
Jordan sub-category of Nunavut exceptional circumstance, and I
subtract it from the total pre-trial delay.

[21] The seven-month delay (the equivalent of 213 days) from plea to the
first trial date in September 2016 resulted from the circuit court
schedule. I attribute that delay to the third new Jordan sub-category
of Nunavut exceptional circumstance, and I subtract it from the total
pre-trial delay.

[22] The five-month and seven-day delay (the equivalent of 161 days) of
the trial from September 2016 to March 2017 was caused by the
Defence adjournment request. I attribute that delay to the Defence,
and I subtract it from the total pre-trial delay.

[23] The six-month 15-day delay (the equivalent of 197 days) from March
2017 to September 2017 was caused by a blizzard. The blizzard was
an uncontrollable and discrete exceptional event. The resulting delay
flowed from the circuit court schedule. I attribute that delay to the to
the new Jordan sub-category of Nunavut exceptional circumstance,
and I subtract it from the total pre-trial delay.

[24] These deductible pre-trial delays total 746 days, and I subtract them
from the total 910 days of delay.

VIII. DECISION

[25] Pursuant to Jordan, I am dealing with an 18-month presumptive pre-


trial delay ceiling for these two summary conviction offences. In my
view, once the once the qualifying delay is properly deducted – that is,
delay attributable to the Defence and the delays arising from discrete
exceptional circumstances in the context of Nunavut – the net delay in
this case is 910 less 746, which amounts to the net delay of 164 days.

17
Jordan, supra note 3 at para 37.
8

These 164 days of pre-trial delay fall well below the presumptive 18-
month (about 540 days) ceiling. Therefore, the pre-trial delay in this
case was reasonable in all the circumstances.

[26] The Defence Charter application fails.

Dated at the City of Iqaluit this 9th day of April, 2018

___________________
Justice Paul Bychok
Nunavut Court of Justice

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