Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Josephee, 2016 NUCJ 08

Date:
Docket:
Registry:

20160316
08-15-529
Iqaluit

Crown:

Her Majesty the Queen

-and-

Accused:
Lyta Josephee
________________________________________________________________________
Before:

The Honourable Mr. Justice Bychok

Counsel (Crown):
Counsel (Accused):

Sarah Arngnanaaq
Kathryn Kellough

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
March 16, 2016
Crown Application for Adjournment

REASONS FOR JUDGMENT

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

I. INTRODUCTION
[1]

The accused, Lyta Josephee, is alleged to have committed an

aggravated assault on Newkinga Kownirk in Iqaluit. The alleged
assault is said to have taken place on September 17, 2015. The trial
was scheduled to be held on March 3, 2016. When the case was
called that day, the Crown applied for an adjournment of the trial. The
Defence opposed the adjournment request. Given the potential
implications of my decision, I adjourned my decision to permit counsel
to file written arguments. Crown counsel has filed written arguments
and supporting affidavits with the court that I have read and
considered. In light of those materials, I have advised the parties that I
do not need to receive any further argument from Defence counsel.

[2]

These are my reasons for decision.

II. FACTS
[3]

The first endorsement on the Information says that the accused

appeared in court on November 30, 2015. The case was adjourned to
December 14, 2015, due to outstanding Crown disclosure. The
accused made three more court appearances before he entered his
election on January 18, 2016. He elected to be tried by a judge sitting
alone without a preliminary inquiry, and he pleaded not guilty. The trial
was scheduled that day for March 3, 2016.

[4]

The Crown prepared and served a subpoena on the complainant.

The subpoena was served on February 22, 2016. The complainant
resides in Pangnirtung. Travel arrangements were then made by the
Crowns travel coordinator to bring the complainant to Iqaluit to testify
on March 3rd.

[5]

Crown counsel told the Court she was assigned the file last week.
Upon reviewing the file, she determined that there were three
potential witnesses who had not been interviewed by the police. One
of those witnesses is said to be a twelve-year-old child who was a
sober witness to the incident. Crown counsel decided that further
investigation was necessary. She consulted with senior counsel who
advised her to seek an adjournment and to cancel the complainants
travel arrangements. The reason for the adjournment request is to
permit the police to interview and obtain statements from these
potential witnesses. Crown counsel was unable to explain why the
investigator had not sought a statement from the child earlier. Nor
could she explain why the investigator was not contacted earlier by
her office to seek that statement.

[6]

The investigating officer, Constable [Cst.] Sebastien Ouellette, filed an

affidavit in support of the adjournment application. He states that he
and his partner, Cst. Hamie Belhumeur, attended the scene of the
incident on September 17, 2015. The complainant was outside the
residence. The police were invited inside. There were two intoxicated
adults and the twelve year-old child inside. Cst. Ouellette said he
spoke to the child and formed the belief that the child had witnessed
the incident. Due to the events that followed, he said he did not take
a statement from the child that evening. He returned to the scene on
his next shift the next evening and he spoke to one of the two adults
who had been present. That witness stated that she had been highly
intoxicated at the time and had little recollection of events. She also
refused to provide a statement. No further investigation was
conducted by the police until late in February, 2016. Cst. Ouellette did
not provide any explanation as to why he failed to obtain a statement
from the sober witness.

[7]

Cst. Ouellette stated that the police did not receive any Crown request
for re-investigation until February 24, 2016, when he was contacted
by Crown counsel. At Crown request, Cst. Ouellette later spoke to the
two adults who had been in the house during the incident. Each
person told him they were too intoxicated to remember what
happened. Cst. Ouellette asked to speak to the child, but was told the
child was not available. He stated he intends to make further
attempts to obtain a statement from the child.

III. POSITIONS OF THE PARTIES

[8]

In her written submissions, Crown counsel argues that the Court

should grant a short adjournment to permit the police to obtain the
statement at issue. She states that the case should be tried on its
merits, and that it is important to present the best evidence
available. Furthermore, the Crown anticipates evidentiary problems
with the quality of the complainants evidence. The complainant is
said to have been highly intoxicated and belligerent with the police on
September 17th. Crown counsel acknowledged that the Crown ought
to have requested the re-investigation in a more timely manner.
However, she did not provide any explanation as to why that was not
done. She asserted that an adjournment would not prejudice the fair
trial rights of the accused. Finally, she stated that the Crown decision
to cancel the complainants travel was justified to save the significant
travel expense where there had been advance notice to defence
counsel that an adjournment was to be sought.

[9]

Defence counsel replied that the investigation should have been

done in a timely manner. It also should have been obvious at the
prosecutor file review stage that further investigation was required.
The accused has been subject to bail restrictions since September,
2015. Defence Counsel also expressed concern that the Crown took it
upon itself to cancel the complainants travel before having the
adjournment request adjudicated by the Court. As I stated earlier, the
Defence opposes the adjournment request.

IV. LAW
[10] The law pertaining to adjournments and unavailable witnesses is well
settled. The Supreme Court of Canada set out three prerequisites in
Darville v The Queen, [1956] SCJ No 82, (1956), 25 CR 1. Those
prerequisites are as follows:
a. The evidence of the witness is material to the case;
b. The party seeking the adjournment is not guilty of laches, or
negligence, in failing to have the witness attend court; and,
c. The court is satisfied there is a reasonable expectation that
the witness will attend court if the case is adjourned.

V. ANALYSIS
[11] The Crown seeks an adjournment of this prosecution on the day of
trial. It does so for three reasons: because the investigating police
officer failed to interview and obtain a statement from a material
witness, because the local prosecution office failed to review its file
until one week before the scheduled trial, and, because the Crown
took it upon itself to cancel travel arrangements for the complainant.
This application raises several issues that strike at the heart of our
administration of justice. As I weigh the arguments in favour and
against the adjournment request, I remind the parties and the public
of the principles that must govern my analysis.
[12] In our free and democratic society, police and prosecutors are
entrusted with tremendous legal power and discretion. On a day-today basis, both institutions operate as independent agencies of the
state. Their employees are sworn to uphold the law, and to protect the
public. In recognition of the difficult roles they play, each agency is
afforded special protections to secure their independence from
outside interference. The delegation of this power and discretion,
though, also comes with a corresponding responsibility. The
authorities are required to act in all cases with due diligence and
professionalism. One of the roles of this court is to hold the authorities
publicly accountable for their actions in a way that defends the
constitution while fostering confidence in, and respect for, the
administration of justice. This court must also protect the right of all
Nunavummiut under 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], to a trial within a reasonable time. I must

consider these fundamental principles as I assess whether the Crown

is entitled to an adjournment of this case.
[13] On the facts before me, I find that the absent witness is material.
However, the Crown did not present any evidence respecting the
witness present circumstances or whereabouts. Furthermore, the
police and the local prosecution office were each negligent in the
performance of their respective duties. Consequently, the Crown is
not entitled to an adjournment.

[14] The negligence I have highlighted reveals a concerning lack of

oversight within both agencies. Not only did the investigating officer
fail to complete his investigation, but the file was processed and
forwarded onto the prosecution without any evident internal review.
Neither the investigating officer, in his affidavit, nor Crown counsel,
offered any explanation for this situation. No evidence was called
concerning internal Royal Canadian Mounted Police checks to ensure
quality control. Whatever system may have been in place in
September, 2015, it failed to catch and correct this obvious deficiency
in the investigation.
[15] This is not the first instance where this court has been made aware of
incomplete police investigations. Indeed, there was another case
scheduled on March 3rd, where the very same issue arose. In that
case, the police had failed to attempt to obtain a statement from
another obviously relevant witness. They also failed to seize evidence
at the scene. The prosecutor was obliged to present her case without
the assistance that the witness and evidence would have afforded.
[16] This regrettable situation was compounded by the negligence of the
prosecution office. Both Crown and Defence counsel stated that it
was immediately obvious to them that the investigation was
incomplete. They had good reason to come to that conclusion. Why,
then, was that obvious deficiency not discovered and addressed by
the Crown in a timely manner? Again, Crown counsel did not offer any
explanation. The Court is left to guess. In our justice system, the
Crown is required by law to assess and to evaluate its prospects of
conviction at each step in the process, not just one week before trial.
The failure to do so in this case was negligent.
[17] There is another concerning aspect to this case. The Crown decided
to cancel travel arrangements for its complainant without first having
its adjournment request adjudicated. It should have been obvious to
the Crown that it had a weak argument, at best, to get an
adjournment. Nevertheless, it chose to run the risk of not bringing in
the complainant from Pangnirtung. Having failed to secure an
adjournment, the Crown has put itself into the following embarrassing
position: it has no case to call against the accused.

[18] Furthermore, I find that an adjournment under these circumstances

would violate the accuseds Charter right to a trial within a reasonable
time.
[19] I am acutely aware that the result of my decision will be the dismissal
of a very serious allegation. And I agree with Crown counsel that the
public has a right to have serious matters litigated, and to have them
tried on their merits. As I stated before, however, the court has an
overriding duty to hold police and prosecutors strictly accountable for
the exercise of their authority. This court cannot be seen to sanction
this level of negligence. To adjourn this case would send a message
that the authorities may act in any way they please, without
consequences. Such a result would undermine public confidence that
this court will protect the rights of all Nunavummiut.
[20] This case also serves as a reminder to the legal profession in
Nunavut. It illustrates the importance of seeking adjournments well in
advance of the scheduled trial date. Where circumstances change at
the last minute, especially where witness travel is involved, counsel
should always seek judicial guidance.
VI. CONCLUSION
[21] Mr. Josephee, please stand up. I have ruled that the police and
prosecution were negligent in the way they handled your case, and
that the Crown is not entitled to an adjournment. The Crown did not
come to court prepared to prosecute your case. Therefore, the charge
against you is dismissed. Your bail conditions are over, and you are
free to leave.

Dated at the City of Iqaluit this 16th day of March, 2016

___________________
Justice P. Bychok
Nunavut Court of Justice