Supreme Court
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Decision information:
Abstract: Transcript of the Decision, following a Hearing Pursuant to Section 598 of the Criminal Code
Decision Content
R. v. Wedawin, 2008 NWTSC 98
S-1-CR2007000095
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- vs. -
RICKY WEDAWIN
_________________________________________________________
Transcript of the Decision, following a Hearing pursuant
to Section 598 of the Criminal Code, by The Honourable
Justice L. A. Charbonneau, at Behchoko in the Northwest
Territories, on December 10th A.D., 2008.
_________________________________________________________
APPEARANCES:
Mr. D. Claxton: Counsel for the Crown
Mr. H. Latimer: Counsel for the Accused
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Charge under s. 271 Criminal Code of Canada
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1 THE COURT: Counsel, I have had a chance
2 to consider the evidence and your submissions and
3 I am ready to give my decision on this
4 application pursuant to Section 598 of the
5 Criminal Code.
6 Ricky Wedawin is charged with a sexual
7 assault that is alleged to have occurred here in
8 Behchoko in May of 2007. Several months ago, he
9 elected to have his trial before a Court composed
10 of a Judge and a jury. Back in September of
11 2008, his jury trial was scheduled to proceed
12 here in Behchoko commencing Monday, December 8th,
13 at 11 a.m. A large number of community members
14 were served with jury summonses for that date and
15 indeed, although I do not have the exact number
16 of people who attended, I know from my
17 observations this past Monday that a large number
18 of people did attend Court for the jury selection
19 process.
20 Mr. Wedawin did not appear. He was not
21 there at 11 a.m. He was not there 15, 20 minutes
22 later when we actually opened Court. I issued a
23 warrant for his arrest as a result of his failure
24 to attend and I had to dismiss the jury panel and
25 send all of those people back home.
26 Mr. Wedawin was arrested a short time after
27 by the RCMP. It appears he was cooperative with
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1 them when they contacted him at his home in
2 Gameti. He did not do anything to try to evade
3 them.
4 So today we held this hearing pursuant to
5 the Criminal Code because Section 598 of the
6 Criminal Code says that when a person has chosen
7 to be tried by a Judge and a jury and failed to
8 appear for their trial or failed to remain for
9 their trial, they are not going to be tried by a
10 Judge and jury unless they establish to the
11 satisfaction of the Judge that there was a
12 legitmate excuse for their failure to attend or
13 their failure to remain. So the onus on this
14 application is on Mr. Wedawin.
15 Before I turn to the specific evidence that
16 I heard this morning and its application to the
17 legal principles, I want to say a few words about
18 some of the principles that are engaged and some
19 of the considerations that are engaged in a
20 matter such as this. Obviously the right to be
21 tried by a Judge and jury when facing certain
22 serious charges is an important right. It is
23 protected by the Canadian Charter of Rights and
24 Freedoms and it is not a right that is lightly
25 taken away from someone.
26 A few years ago in a case called R. v. Lee
27 which is reported at 1989, volume 2, Supreme
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1 Court Reports at page 1384, the constitutional
2 validity of Section 598 was challenged because it
3 was being alleged that it was a breach of the
4 right to have a trial before a jury and that it
5 was not an infringement that was saved by
6 Section 1 of the Charter.
7 I want to refer to that case briefly simply
8 because it talks, I think, very eloquently about
9 the objectives of this provision and why it is
10 that when a person does not show up for their
11 jury trial, they have a very strong risk of
12 losing their right to a jury trial. I just want
13 to quote briefly because I cannot really say it
14 any better than what is said in that case.
15 The Supreme Court of Canada in saying that
16 there was a valid legislative purpose behind this
17 section said this in talking about the expenses
18 and costs to the system that flow from a failed
19 attempt to hold a jury trial, and the Court said,
20 this is at paragraph 4 of the decision,
21 The expense, it should be noted, is
22 not only to the system. Persons
23 summonsed to serve on a jury panel
24 have little choice but to obey the
25 summons and as such, individuals who
26 are selected as potential jurors
27 often forego, for a substantial
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1 time, their daily livelihood. In
2 smaller and more remote communities,
3 this may have a severe disruptive
4 effect on the jurors. Similarly, in
5 these areas the costs of empaneling
6 a jury for the first time, let alone
7 the second time, is very high. All
8 of this leads to an erosion in
9 public confidence and a frustration
10 with the system when the accused
11 fails to appear for his trial and
12 the assembled jury panel has to be
13 sent away.
14 I think this is exactly what happened last
15 Monday. A large number of people came to the
16 courtroom, it was a very cold day, and I am sure
17 they had better things to do than to come to the
18 community hall for jury selection. And when I
19 had to send them all away because Mr. Wedawin was
20 not there, I am sure that it did not do a lot of
21 good to their perception of the administration of
22 justice.
23 That being said, I have to consider the
24 evidence that I heard this morning, more
25 specifically, Mr. Wedawin's explanation for not
26 having appeared on Monday.
27 It is not a complicated or convoluted
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1 explanation. Simply put, he had not made his
2 arrangements to come here ahead of time. He
3 acknowledged that he knew about the trial date.
4 He was in Gameti and on Friday he went to the
5 airport to speak to the Air Tindi agent to see
6 about getting a ticket to come here. He was told
7 that the flights on Friday and Sunday were fully
8 booked and those were the only two flights that
9 he could take to get here. He testified, and
10 there is nothing contradicting this, that this
11 was the first time that he had problems in making
12 reservations to travel between these two
13 communities. Although he did not say it that
14 way, I interpret his evidence to be that it never
15 occurred to him that he would have problems
16 getting here even if he made his arrangements at
17 the very last minute.
18 I also heard evidence from Ms. Jacqueline
19 Burke who works at Air Tindi. She testified that
20 there were three seats available on the Friday
21 flight but she also said that it's not uncommon
22 for seats to become available as a result of
23 cancellations. There was no evidence about
24 whether in fact on that Friday some of the open
25 seats, or all of the open seats, became available
26 as a result of cancellations, so I don't know
27 either way. She confirmed that there were no
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1 seats on the Sunday flight.
2 She talked about the scheduled flights
3 between these communities and between Gameti and
4 Yellowknife. There are in fact more flights
5 between Gameti and Yellowknife than flights
6 between Gameti and Behchoko.
7 I think it is clear on her evidence that
8 there would have been ample opportunities for
9 Mr. Wedawin to travel on various dates or make
10 arrangements to travel at various points ahead of
11 of the trial date, and there's no direct evidence
12 of this, but this is a situation where there is a
13 regular schedule so presumably had Mr. Wedawin
14 made his arrangements a longer time ahead of
15 time, he probably would have been able to get a
16 seat or make alternative arrangements.
17 The other evidence I heard from Mr. Wedawin,
18 and this is not contradicted, is that the winter
19 road that exists between Gameti and Behchoko is
20 not yet open. Mr. Wedawin said that as far as he
21 knew no one yet was travelling by snowmobile.
22 Mr. Wedawin Sr., his father, made reference to
23 there "hardly being a skidoo trail yet" between
24 the communities so on the evidence before me, it
25 appears there was no other way for Mr. Wedawin to
26 come here other than by air and at the point he
27 tried to make those arrangements, that was not an
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1 option anymore.
2 There is no evidence that Mr. Wedawin made
3 any particular effort to see if someone else
4 could be bumped off the flight, that he made any
5 attempts to contact anyone ahead of time to
6 explain what his problem was and see about
7 possible alternative arrangements, but as his
8 counsel pointed out, and this is consistent with
9 my observations of him during his testimony,
10 Mr. Wedawin does not appear particularly
11 sophisticated. It is clear to me based on his
12 testimony that he exercised very poor planning,
13 bad judgment, and a certain level of immaturity
14 and a failure to appreciate the consequences of
15 actually not being able to be here on time on the
16 scheduled trial date.
17 When I consider the legal principles that
18 apply, and I referred to this during my exchange
19 with Mr. Claxton during the submissions, I rely
20 on a decision by the Ontario Court of Appeal,
21 R. v. Harris, 66 C.C.C. (3d) 536.
22 In that case what was at stake was an honest
23 mistake made by an accused about the actual date
24 that the trial was scheduled to start but the
25 Ontario Court of Appeal made the following
26 comments on page 3 of the decision about what
27 circumstances are those where someone's right to
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1 a jury trial should be taken away. They said,
2 In our view, nothing less than an
3 intentional avoidance of appearing
4 at trial for the purpose of impeding
5 or frustrating the trial or with the
6 intention of avoiding its
7 consequences or failure to appear
8 because of a mistake resulting from
9 willful blindness should deprive an
10 accused of his constitutional right
11 to trial by jury guaranteed by
12 Section 11(f) of the Charter.
13 There is no evidence before me of any
14 intentional avoidance of appearing at trial. The
15 question was specifically put to Mr. Wedawin on a
16 number of occasions and he denied that he was
17 trying to avoid the trial. So that leaves the
18 question of whether his general way of
19 approaching this can be characterized as a
20 mistake resulting from willful blindness, that
21 is, the mistake of not having made his
22 arrangements sooner.
23 The Crown is not arguing really, if reading
24 between the lines and on the word of the Crown
25 prosecutor's submissions, the Crown is not really
26 arguing that this conduct amounts to willful
27 blindness. It seems clear that Mr. Wedawin
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1 simply approached this assuming that everything
2 would be as it had been before for him, that is,
3 that he could make last minute arrangements and
4 get on the plane. It is very unfortunate that
5 this is how he approached things because unlike
6 what might be the case when planning a visit, a
7 trip, or even travelling back and forth for
8 school, the matter of being in attendance for
9 one's jury trial on a serious charge is a very
10 very serious matter and one that should have been
11 planned and arranged for much longer ahead of
12 time than was done here. The Court, I must say,
13 is extremely unimpressed by Mr. Wedawin's
14 approach to this. But, having given the matter
15 careful consideration, I cannot say that it is
16 over the line of willful blindness for a few
17 reasons:
18 First, because Mr. Wedawin had never before
19 experienced problems travelling between these two
20 communities. Second, because he seemed to be
21 under a certain, or operating on the basis of
22 certain suggestions that were made by his parents
23 so he may not have explored the Friday option as
24 much as he should have. But mostly because he
25 seems to not be a particularly mature and
26 sophisticated individual.
27 So notwithstanding the disruption that this
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1 caused to people's lives in this community and
2 other aspects of the costs that flow from the
3 fact that this jury trial fell apart this week, I
4 have concluded that I should not take
5 Mr. Wedawin's right to a jury trial away from
6 him. In fact I am not hearing the Crown asking
7 particularly strenuously that I should. So for
8 that reason, I am not going to order that
9 Mr. Wedawin have his trial in front of a Judge
10 sitting alone.
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15 Certified to be a true and
accurate transcript pursuant
16 to Rules 723 and 724 of the
Supreme Court Rules,
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Lois Hewitt, CSR(A), RPR, CRR
23 Court Reporter
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