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Abstract: Transcript of Decision on Bail Estreatment Hearing
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R. v. Alookee, 2011 NWTSC 11 S-1-CR-2009-000074 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - and - CLIFFORD ALOOKEE _____________________________________________________ Transcript of Decision on Bail Estreatment Hearing delivered by the Honourable Justice L.A. Charbonneau, sitting at Yellowknife, in the Northwest Territories, on March 2nd, A.D. 2011. _____________________________________________________ APPEARANCES: Mr. M. St-Germain: Counsel for the Crown Mr. J. Bran: Counsel for the Accused Official Court Reporters 1 THE COURT: This is an application for 2 forfeiture of bail monies that were deposited 3 with the Court following an order made by a 4 Justice of the Peace. In that order, the Justice 5 of the Peace had ordered that Clifford Alookee be 6 released on a recognizance with a number of 7 conditions, including one that he deposit $2,500 8 in cash deposit before he could be released. 9 There are many unique features to this case. 10 It makes the decision to be made on this hearing 11 a difficult one. To put this hearing and my 12 decision in context, I will refer to some extent 13 to the history of these proceedings. 14 First, the history of the prosecution that 15 this recognizance was associated with. Mr. 16 Alookee was charged in March of 2009 with a 17 sexual assault that allegedly had occurred in 18 Yellowknife. He was arrested and he was ordered 19 released on the recognizance that I have already 20 referred to. That order was made in March, 2009, 21 and the cash deposit was made in May. So that 22 was when Mr. Alookee was actually released. 23 There were no sureties on the recognizance. 24 It simply required that monies be deposited. 25 There is a receipt on the court file that shows 26 that those monies were sent to the Court by 27 Anaoyok Alookee, who is Mr. Alookee's mother. Official Court Reporters 1 1 Mr. Alookee's Preliminary Hearing took place 2 on August 7th in Yellowknife, and he was present 3 as required. He was committed to stand trial and 4 his jury trial was scheduled to commence on May 5 31st, 2010. On that date, Mr. Alookee did not 6 appear. His counsel advised that Mr. Alookee was 7 still in Taloyoak and that he did not have the 8 financial means to come to Yellowknife for his 9 trial. At that point a warrant was issued for 10 Mr. Alookee's arrest and the many people who were 11 in the courtroom in response to jury summonses 12 were excused. 13 It is not disputed that after Mr. Alookee 14 was advised that a warrant had been issued for 15 his arrest he went to the RCMP Detachment in 16 Taloyoak to turn himself in. He was asked to 17 come back two days later, and I gather this was 18 because that was when the next flight out of the 19 community was scheduled for. Mr. Alookee did 20 return to the RCMP as directed. He was taken 21 into custody and brought to Yellowknife. He was 22 brought before the Court on June 3rd, and the 23 matter was adjourned to June 4th to give counsel 24 time to decide how to proceed next. 25 At that point there were two hearings that 26 potentially needed to be scheduled; a hearing 27 under section 598 of the Criminal Code to Official Court Reporters 2 1 determine whether Mr. Alookee had lost his right 2 to be tried by a jury, and also a bail hearing to 3 determine whether he would remain in custody or 4 be released again pending the scheduling of his 5 trial, because, obviously, the trial was not 6 going to proceed that week. 7 On June 4th the bail hearing proceeded. 8 There was no viva voce evidence called at that 9 time, but Mr. Alookee's counsel made submissions 10 about some financial strains that had hit the 11 Alookee family and some of their circumstances, 12 all this leading to his failing to attend court. 13 At the conclusion of that hearing, Mr. 14 Alookee was ordered detained on the primary 15 ground. The section 598 hearing was adjourned to 16 August 20th, and it was understood that the issue 17 of bail could be revisited at that time. Counsel 18 advised that he would likely call viva voce 19 evidence at the section 598 hearing, and it was 20 expected this might be relevant to bail. 21 So on August 20th the 598 hearing was held. 22 Mrs. Alookee was called as a witness, and at the 23 conclusion of her testimony the Crown conceded 24 that Mr. Alookee had met his onus and had showed 25 cause why he should retain his right to have a 26 jury trial. The bail hearing then proceeded. 27 The evidence that had already been called was Official Court Reporters 3 1 applied to it, and Mr. Alookee testified. At the 2 conclusion of that bail hearing he was ordered 3 detained, but on the secondary ground. 4 His jury trial was eventually rescheduled 5 and it started on January 24th, concluding on 6 January 26th when the jury returned a verdict of 7 not guilty. That is the procedural history of 8 the prosecution. 9 Turning to the history of the forfeiture 10 proceedings: Essentially, pursuant to section 11 770 of the Criminal Code, if a person does not 12 comply with a condition of a recognizance, a 13 Court, having knowledge of the default, is to 14 endorse the recognizance with a certificate in 15 Form 33. The section sets out certain 16 requirements as to what has to appear on the 17 certificate. The certificate was issued on June 18 4th at the conclusion of the bail hearing. 19 Section 771 of the Criminal Code provides 20 that once a certificate has been filed, a hearing 21 date must be set on request of either the Clerk 22 of the Court or the Attorney General. No request 23 was made by either the Clerk or the Attorney 24 General for a hearing date, but, rather, after 25 the criminal proceedings were completed in 26 January, 2011, Mr. Alookee's counsel wrote to the 27 Registry requesting the return of the bail Official Court Reporters 4 1 monies. The Registry contacted the Crown, who 2 advised they did wish to have the monies 3 forfeited, and that is how the matter got set for 4 a hearing. 5 That hearing started earlier this week. Mr. 6 Alookee's counsel raised preliminary objections 7 to the hearing taking place, arguing that the 8 Court did not have jurisdiction to hold it. Some 9 issues were raised with respect to notice, as 10 well as alleged deficiencies in the certificate 11 itself. 12 After hearing submissions from both counsel 13 on these issues, I concluded that the Court did 14 have jurisdiction to hold the hearing, and I set 15 the continuation of the hearing to today's date. 16 I did so because I was of the view that counsel 17 and the Court should have an opportunity to 18 review the evidence that was adduced on August 19 20th, since that evidence related to the 20 circumstances that led to the default that 21 triggered the forfeiture hearing. 22 The Crown on this hearing had initially 23 indicated that it was seeking full forfeiture of 24 the bail monies, but, after having reviewed the 25 transcript of the August 20th proceedings, Crown 26 counsel has conceded that full forfeiture may not 27 be appropriate. He maintains that some Official Court Reporters 5 1 forfeiture should be ordered in order to uphold 2 the integrity of the bail principles. 3 Counsel points out that Mrs. Alookee was not 4 a surety in this matter, so whatever diligence 5 she displayed and whatever efforts she made are 6 not what the Court should focus on at this 7 hearing. He says that the Court should focus, 8 rather, on Mr. Alookee's own actions and efforts 9 to comply with a recognizance. 10 The Crown has referred me today to the case 11 of R. v. Howell reported at [2008] N.J. No. 259, 12 where one of the considerations in deciding on 13 the amount of forfeiture was that the person in 14 that case had been prosecuted and sentenced for 15 the breach. The Court found that that mitigated 16 the need to forfeit the full amount. In that 17 case, because there has not been a prosecution 18 for failure to appear, the Crown says, using the 19 flip side of the same reasoning, that militates 20 in favour of forfeiture. 21 For his part, Mr. Alookee's counsel says 22 that no money should be forfeited in this case. 23 He has made arguments that justice was not 24 delayed in this case, because the Court never 25 lost control over Mr. Alookee. He argues that it 26 is irrelevant if it was Mrs. Alookee making the 27 efforts to get her son to court or Mr. Alookee Official Court Reporters 6 1 himself; the point is that efforts were made. 2 He also argues that the position taken by 3 the Crown today is inconsistent with the position 4 that was taken at the 598 hearing when the 5 concession was made that Mr. Alookee should not 6 lose his right to a jury trial and, in the 7 process of doing so, acknowledged that efforts 8 had been made and stated that there was no fault 9 on Mr. Alookee's part or on his mother's part. 10 I want to deal with that argument now, 11 because I think it is important to draw certain 12 distinctions. I do think that the position that 13 the Crown took at the section 598 hearing is 14 relevant in the sense that it shows that the 15 Crown accepted aspects of the evidence that was 16 presented about the circumstances of the default, 17 but that position has to be put in context of the 18 nature of the hearing that was being held at that 19 time. Section 598 of the Code deals with what 20 happens when a person fails to appear or remain 21 at his or her jury trial. This section places an 22 onus on that person to show that they had a 23 legitimate excuse for not attending. Otherwise, 24 they lose their right to a jury trial. 25 That section has been challenged and its 26 constitutionality has been upheld, but it has 27 been interpreted to mean that nothing less than Official Court Reporters 7 1 deliberate avoidance or a mistake about the trial 2 date that results from wilful blindness should 3 deprive a person of their right to a jury trial. 4 So it is a fairly high threshold. 5 The position that the Crown took in the 6 context of the section 598 hearing must be 7 understood bearing in mind the legal test that 8 was applicable in that hearing. In light of the 9 evidence that was heard, it was my opinion at the 10 time - and it remains my opinion - that that was 11 a sound, reasonable position for the Crown to 12 take. The circumstances that led the Crown to 13 take that position and the evidence that led the 14 Crown to take that position in the context of the 15 section 598 hearing have relevance to this 16 hearing, but I do not think that having made that 17 concession at that time should necessarily be 18 seen as creating an insurmountable obstacle for 19 the Crown at the forfeiture hearing, because the 20 legal test and principles that apply at a 21 forfeiture hearing are very different than the 22 ones that apply at a section 598 hearing. The 23 evidence about the circumstances of the failure 24 to appear is relevant to both, but, as I say, the 25 tests to be applied are very different. 26 Turning now to the principles that I must 27 apply in a hearing like this one, there are, Official Court Reporters 8 1 first of all, general principles. A forfeiture 2 hearing is an opportunity for the person who was 3 bound by the recognizance or the sureties, if 4 there are any sureties, to be relieved from 5 forfeiture. The onus is on those persons to show 6 that they should be relieved from forfeiture. 7 That is what is stated in Trotter's text, 8 The Law of Bail in Canada, 2nd Edition. That is 9 at page 473. It is also what the case of 10 Canada v. Horvath says. That is a case I 11 referred to early on in these proceedings. It is 12 reported at [2009] 0.J. No. 4308 at paragraph 27. 13 It is a Court of Appeal of Ontario decision, a 14 five-judge panel, and I have found it very 15 helpful and quite persuasive as far as setting 16 out what kinds of considerations apply at a 17 hearing like this one. 18 In his text, Trotter also notes that 19 paragraph 2 of section 771 does not provide much 20 guidance as to how these hearings are to be 21 conducted and what criteria should be applied in 22 deciding whether to forfeit some, none or all of 23 the bail amounts. All the provision says is that 24 the Judge may, after giving the parties an 25 opportunity to be heard, in his discretion grant 26 or refuse the application and make any order with 27 respect to the forfeiture that he considers Official Court Reporters 9 1 proper. One does not get much broader than that 2 as far as a provision that gives a power to a 3 court. So it is clear from that particular 4 provision that the power is a discretionary one. 5 That is why I found the Horvath case useful, 6 because it contains an overview of the various 7 considerations that ought to come into play when 8 making a decision like the one I have to make 9 today. That case dealt with situations that 10 involved sureties, but I find that many of the 11 principles that are set out in that case can also 12 apply to situations such as this one where there 13 was no surety, especially in this case, I think, 14 because although Mrs. Alookee was not a surety, 15 she was the one who sent the monies to be 16 deposited. 17 The evidence adduced on August 20th, which 18 was not challenged in any real way by the Crown, 19 was that this money is her money. The evidence 20 also showed that she acted very much as a de 21 facto surety in the circumstances of this case, 22 taking steps to try to get Mr. Alookee to court; 23 she was very aware of his reporting conditions. 24 Although I agree with the Crown that she 25 does not have any standing on this hearing, I 26 still am of the view that in exercising my 27 discretion I should not disregard her involvement Official Court Reporters 10 1 completely, nor the fact that ultimately the 2 money that stands to be forfeited is hers. 3 In Horvath the Court recognized the 4 importance of approaching these hearings with the 5 objective of ensuring the effectiveness of the 6 bail system, which is obviously an important 7 consideration. But the Court also said at 8 paragraph 44 that it did not accept that the only 9 way to ensure the effectiveness of the system was 10 to adopt a rigid rule of total forfeiture, absent 11 exceptional circumstances. Rather, the Court 12 favoured a more flexible approach as being more 13 consistent with the broad discretion that is 14 implied by the language of section 771(2), and I 15 agree entirely with that. 16 At paragraph 51 of the decision the Court 17 outlined a number of factors that can be 18 considered in deciding how to exercise the 19 discretion. All these factors, of course, are 20 worded in terms of the surety, but, as I have 21 said, many are relevant and, in my opinion, can 22 be applied by analogy to cases where there are no 23 sureties. These factors include, for instance, 24 the amount of the recognizance, the question of 25 diligence, whether it is diligence of the surety 26 or diligence of the person bound by the 27 recognizance, the question of means of the people Official Court Reporters 11 1 involved, the question of the conduct that takes 2 place after the breach. 3 To the extent that the evidence called on 4 August 20th related to the reasons why Mr. 5 Alookee was not in court on May 31st, his actions 6 and that of his mother, both before and after 7 that date, as well as the financial situation 8 that the family faced, that evidence goes to some 9 of these factors I have just identified and is 10 relevant to the question that must now be 11 decided. That is why I felt it was important to 12 have transcripts of that evidence so that what 13 was said at that time be clear. 14 Counsel acknowledged earlier this week that 15 there would be very little point in having these 16 people testify again about these matters for the 17 purposes of the forfeiture hearing, and, once 18 again, that is a reasonable approach. The 19 transcripts show that their evidence on August 20 20th, that being the evidence of Mrs. Alookee and 21 the evidence of Mr. Alookee, was not really 22 challenged by the Crown. The cross-examination 23 was geared as eliciting further details and 24 clarifications, but, really, there was no issue 25 taken with what the witnesses were saying about 26 what transpired. 27 Mrs. Alookee said that Mr. Alookee came to Official Court Reporters 12 1 live with her after he was charged with matters 2 involving his common-law spouse in Repulse Bay 3 and he was required to live outside of that 4 community. She testified that she paid for him 5 to come to Taloyoak to live with her, and she 6 explained that as the trial date approached in 7 April or May she tried to contact Defence counsel 8 to explain their money issues, but that counsel 9 was on holidays. She testified that she had also 10 spoken to counsel sometime before this in 11 February, she thought, and that she had been told 12 that there might be some assistance available for 13 her. When she was not able to get a hold of 14 counsel, she tried to get a points ticket for Mr. 15 Alookee, but, because they were at the last 16 minute, that did not work either. 17 She explained that the financial problems 18 the family faced around that time stemmed in part 19 from the fact that her husband got diagnosed with 20 cancer in September, 2009 and that she and her 21 husband had to spend extended periods of time in 22 Edmonton while he was being treated. There were 23 expenses associated with all of this and that 24 strained the family's finances. 25 Mr. Alookee, for his part, testified that he 26 had looked for work while he was on release in 27 Repulse Bay and also after he moved to Taloyoak, Official Court Reporters 13 1 but he did not have any success. He also talked 2 about how he turned himself in to police custody 3 on the very day the warrant was issued and, 4 again, two days later when he was directed to do 5 so. 6 The exercise of a discretionary power 7 requires the balancing of a lot of factors, and 8 there are quite a few that come out of the 9 evidence and the circumstances of this case; some 10 that militate in favour of forfeiture and others 11 that militate against it. 12 As far as things that would tend to militate 13 in favour of a forfeiture order, I think the 14 first is the need for the courts to uphold and 15 enforce the bail system and not undermine it. 16 The real effective force of bail and of cash 17 deposits and sureties is that it provides a 18 powerful incentive for a person to attend their 19 trial and comply with conditions, because, if 20 they do not, monetary consequences will follow 21 for themselves, for their loved one who posted 22 their bail or for their sureties, if they have 23 any. 24 As the Court of Appeal of Ontario put it in 25 Horvath at paragraph 41, our system depends on 26 accused persons attending court, and if accused 27 came to believe that they can fail to attend Official Court Reporters 14 1 court and there would be no consequences as far 2 as bail monies or sureties, the surety system and 3 bail system would be ineffective. That is a 4 consideration that militates in favour of there 5 being a meaningful monetary consequence for the 6 default in this case. 7 Another consideration is the nature of the 8 default. By this I mean this was a failure to 9 appear at a date set for a jury trial. 10 Prospective jurors were inconvenienced by having 11 to attend court in response to their summonses. 12 There had been subpoenas issued for the May 31st 13 date, and the court file shows that two were 14 issued to residents of Gjoa Haven, and, of 15 course, there was the expense associated with 16 arresting and transporting Mr. Alookee under 17 escort to Yellowknife for his trial. 18 Another consideration is the effect of the 19 default, which in this case was to delay the 20 trial for some six months. Defence counsel has 21 argued, based on R. v. Wan, [2010] B.C.J. No. 22 766, that a delay of the trial in this context 23 implies a loss of control by the Court over the 24 movements of the accused for a period of time; in 25 other words, a period of limbo where the system 26 loses track of someone. 27 The case that Defence case referred to does Official Court Reporters 15 1 make reference to this notion of losing control 2 over the accused, but, again, these comments must 3 be read in the context of the case. In Wan the 4 accused was out on bail, breached his conditions, 5 was arrested and then was taken before the court 6 and his matters were dealt with. There is no 7 indication whatsoever that proceedings were 8 delayed in any way as a result of the default. 9 Whereas in this case, because the default was a 10 failure to appear and it occurred on a trial 11 date, there was a delay in the proceedings, and 12 that is a factor. 13 The next consideration having to do with the 14 circumstances leading to the breach, and I will 15 get back to this in a moment, but some aspects of 16 that also militate in favour of forfeiture to 17 this extent: The trial had been set a long time 18 ahead of time. Most of the efforts seem to have 19 been made by Mrs. Alookee. Some steps that might 20 have been taken were not taken, such as speaking 21 to the police or Crown or the court to flag these 22 problems that were being encountered. 23 As for this question that the Crown has 24 asked me to take into account, that being the 25 fact that Mr. Alookee was not prosecuted or 26 sentenced for the breach, I will say this: The 27 Crown argues this militates in favour of Official Court Reporters 16 1 forfeiture. But, with respect, I cannot agree 2 with that. I do not think that the argument used 3 in the Howell case can be used a contrario, 4 because the fact that a person is not charged 5 does not necessarily mean that they got a break. 6 It can simply mean that the authorities 7 recognized that they would not have had a 8 reasonable prospect of conviction on a breach 9 charge. So I really do not see how that argument 10 works. It is the flip side of the consideration 11 given by the Court in Howell to not over-punish 12 someone, but, with respect, I do not think it 13 works in the other direction. 14 So I have talked about things that would 15 militate in favour of forfeiture. Now I will 16 turn to things that militate against it. Some of 17 these factors go back to the same general 18 categories, but just other angles, other sides of 19 the same coin, if I can put it that way. 20 The consequences of the default: I have 21 talked about this already as far as the delay of 22 the trial and the inconvenience to prospective 23 jurors and the costs. One very significant 24 consequence of this default is that Mr. Alookee 25 ended up being detained following his failure to 26 attend and he was detained for a number of 27 months. That is not an insignificant Official Court Reporters 17 1 consequence, and, in my view, in the 2 circumstances of this case, it is especially not 3 an insignificant consequence because of the 4 situation that was going on with his family, his 5 father's serious illness and deteriorating 6 health. 7 I was told today that at the time of the 8 trial Mr. Alookee had not passed away, but the 9 fact is, at the time of the August 20th bail 10 hearing the evidence from Mrs. Alookee was that 11 the prognosis was very poor, which means that 12 while Mr. Alookee was sitting on remand, he was 13 sitting with the knowledge that essentially his 14 father was dying. So I do not think that that is 15 a consequence that can be ignored in terms of the 16 overall picture. 17 The other aspect is to do with the 18 circumstances of the default itself. I think I 19 should take into account that there were 20 financial pressures on the family due to the 21 father's illness that were beyond the control of 22 Mr. Alookee and of everybody else. So that is 23 one factor. Also, although perhaps more could 24 have been done, some steps were taken on his 25 behalf to try to address this, including 26 contacting counsel, trying to find alternative 27 means of getting a ticket and those other things Official Court Reporters 18 1 that she testified about. 2 The third factor - and it is one of the ones 3 identified in Horvath - is the behaviour after 4 the default. In this case, I think to be fair, 5 Mr. Alookee could not have been more cooperative 6 with the authorities in turning himself in. It 7 is very clear he was not trying to evade the 8 authorities. On the contrary, according to his 9 mother's testimony, he really wanted to get this 10 matter dealt with. 11 Another factor that is identified in the 12 case law is the amount of money. In Horvath, the 13 court said at paragraph 46 that in most cases 14 involving relatively small amounts, total 15 forfeiture may be required to adequately enforce 16 what is called the "pull of bail". By that, the 17 Court means the effectiveness of the bail system 18 and the incentive it gives to an accused to 19 comply with conditions. But, of course, what is 20 a relatively small amount? That in itself is a 21 very relative thing. 22 Based on the evidence about this family's 23 situation, I have no doubt that $2,500 is not a 24 small amount of money. As I have already noted, 25 I do not think that I can ignore the evidence 26 that this is Mrs. Alookee's money, even though, 27 as far as the recognizance that was issued, she Official Court Reporters 19 1 was not named as a surety. 2 So I have tried to outline the various 3 considerations that I see having relevance here. 4 Part of the reason I have gone on at some length 5 here was that I do find this is one of those 6 cases where there really are factors pointing in 7 all directions. I have considered all these 8 factors, and, I must say, ordinarily in a 9 situation that involves a failure to appear for a 10 jury trial in particular, I would be very much 11 inclined to order full forfeiture or at least 12 partial forfeiture, primarily to promote and 13 uphold the effectiveness of bail principles. I 14 think that in most cases that would be an 15 appropriate way to deal with the matter if I take 16 into consideration the applicable principles and 17 the persuasive guidelines set out in the case 18 that I have referred to several times already. 19 But when a Court exercises broad discretionary 20 powers, it has to be sensitive to the unique 21 circumstances of each individual case. 22 After having considered all the competing 23 factors carefully, I conclude that given the 24 circumstances that brought about the default, 25 including the financial and personal turmoils 26 that the family was going through at the time, as 27 well as the very direct personal consequences Official Court Reporters 20 1 that Mr. Alookee faced himself as a result of his 2 failure to attend court on May 31st, it is not in 3 this case necessary to forfeit these bail monies 4 to uphold the principles that underlie the bail 5 system. 6 It has been suggested that I could order the 7 forfeiture of a small amount to symbolically 8 uphold the bail principles, but I have decided 9 against that. I think the forfeiture of a small 10 amount of money, even if it was $200 or $300, 11 might do more harm than good as far as upholding 12 the bail system. It might actually trivialize 13 matters more than anything else. The fact is 14 that but for the very exceptional circumstances 15 in this case, most of all of these monies would 16 have been ordered forfeited. So since I have 17 concluded that in the circumstances that would 18 not be appropriate, I really do not see the point 19 in making what would essentially be a token 20 order. 21 Unlike the analogy that was made with the 22 situation of a sentencing where a Judge gives one 23 day in jail to an offender, I think in that 24 context there is a point. The Judge sends a 25 message to the offender and leaves a very clear 26 clue for the next Judge, should the person be 27 before the Court again. But in the context of Official Court Reporters 21 1 forfeiture, I do not think that the kind of 2 signal that this would give is the same or can 3 serve the same purpose, and I do not see it as a 4 desirable approach. For these reasons, I decline 5 to order forfeiture of these monies. 6 Now, the question is what order I should 7 make. Mr. Bran, I can't remember what you 8 requested in your letter, but would it be 9 appropriate for me to direct that the monies be 10 returned to you in trust for Mr. Alookee? I am 11 sure the Registry won't want to mail $2,500 to 12 Taloyoak. So what do you suggest? 13 MR. BRAN: Your Honour, I don't have a 14 trust account, and I don't believe I am in a 15 position to legally take any money in trust. 16 What I would suggest is issuing a -- and I am not 17 even sure how bail money is normally returned, if 18 it's returned in cash or if it's returned in a 19 cheque. 20 THE COURT: Okay. Well, I think what I am 21 going to do is I am simply going to make the 22 order that the money -- and I have to order it 23 returned to Mr. Alookee, I think, because Mrs. 24 Alookee, although there is a receipt in her name, 25 the money was ordered deposited for him. She is 26 not a surety. I cannot direct that the money be 27 returned to her. So I will order that it be Official Court Reporters 22 1 returned to Mr. Alookee, and I will speak to the 2 Registry staff to make sure that that is done in 3 a way that is consistent with how they normally 4 proceed so that I do not create problems, and 5 perhaps we can figure out those details later. 6 But do you know, Mr. Alookee still lives with his 7 mother, does he? 8 MR. BRAN: Your Honour, I am not sure, 9 given the fact that there was an issue with 10 Nunavut matters before the Nunavut Court of 11 Justice. What I could do is I can undertake to 12 contact Mr. Alookee and get a current mailing 13 address and I can provide that to the Court 14 Registry -- 15 THE COURT: Okay. 16 MR. BRAN: -- probably by the end of 17 tomorrow for mailing purposes. 18 THE COURT: All right. Well, my order 19 will be that the monies be returned to Mr. 20 Alookee and that counsel provide the Registry 21 with the necessary information to allow that to 22 happen. That should leave it general enough. 23 I want to thank you, counsel, for your 24 submissions on this. They were very helpful. 25 I just wanted to add, more as a postscript 26 than anything else, that there is a mechanism in 27 the Criminal Code in the warrant provisions that Official Court Reporters 23 1 provides for an application to be made for the 2 issuance of an arrest warrant when a person has 3 breached or is about to breach a recognizance. 4 I am not directing it as a criticism at all. 5 I am just raising it as an option that may, in 6 certain circumstances, be open if counsel become 7 aware very shortly before the start of a trial 8 that the accused person will not be in court. 9 That is a mechanism that I think is sometimes 10 used. Of course, it requires communicating with 11 the Crown, because it would be the Crown that 12 would be applying for the warrant, not Defence, 13 but it is a means of getting something in place 14 that can allow a trial to proceed. 15 It was not the case in this case, but it is 16 a means to, for example, avoid having a court 17 party get on a plane on a Monday morning to a 18 destination when it is known that there will not 19 be a point to that if the person, say, is stuck 20 on the wrong side of Great Bear Lake at breakup 21 time or -- you smile, Mr. Bran, but that has 22 happened. 23 So I just wanted to mention that, just in 24 case a situation arises in the future where that 25 option could be considered, possibly. 26 So if there is nothing further from either 27 of you, we will close court. Official Court Reporters 24 1 MR. ST-GERMAIN: Thank you, Your Honour. 2 MR. BRAN: Thank you, Your Honour. 3 THE COURT: Thank you, counsel. 4 ..................................... 5 6 7 Certified to be a true and accurate transcript pursuant 8 to Rules 723 and 724 of the Supreme Court Rules. 9 10 ______________________________ 11 Jill MacDonald, RMR 12 Court Reporter 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 25
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