Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Oral Ruling on a Section 11(b) application
Decision Content
R. v. Caesar, 2013 NWTSC 65 S-1-CR-2011-000054 IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES IN THE MATTER OF: HER MAJESTY THE QUEEN - v - JAMES CAESAR _____________________________________________________________ Transcript of the Oral Ruling on a Section 11(b) application delivered by The Honourable Justice K. Shaner, sitting in Norman Wells, in the Northwest Territories, on the 10th day of September, A.D. 2013. _____________________________________________________________ APPEARANCES: Mr. A. Godfrey: Counsel for the Crown Mr. M. Martin: Counsel for the Accused (Charges under s. 149 and 246.1 Criminal Code of Canada) BAN ON PUBLICATION OF THE COMPLAINANT/WITNESS PURSUANT TO SECTION 486.4 OF THE CRIMINAL CODE Official Court Reporters 1 THE COURT: Mr. Caesar is charged with 2 indecent assault and a sexual assault. The 3 events are alleged to have occurred between 1980 4 and 1987. The investigation by the police began 5 in March of 2007. Mr. Caesar was arrested on May 6 1st, 2010, and released on an undertaking and 7 promise to appear. He has not been detained in 8 connection with this matter since then. 9 Thirty-nine months have elapsed since the 10 Information was sworn. 11 The first appearance was on August 5th, 12 2010, in Fort Good Hope, Northwest Territories. 13 Mr. Caesar appeared with duty counsel and 14 requested an adjournment to permit him to retain 15 counsel. The matter was adjourned to October 16 27th, 2010. Mr. Caesar then appeared with duty 17 counsel again and requested another adjournment 18 as he had not yet had an opportunity to retain a 19 lawyer privately. So the matter was set over to 20 December 8th, 2010. At the December 8th 21 appearance, Mr. Caesar again appeared with duty 22 counsel and entered his election. The matter was 23 set over to March 23rd, 2011, for a preliminary 24 inquiry in Fort Good Hope. The preliminary 25 inquiry proceeded as scheduled and Mr. Caesar was 26 committed to stand trial. 27 Mr. Caesar was, by this time, represented by Official Court Reporters 1 1 Mr. Abdul Khan. Mr. Khan advised the Court in 2 writing of his availability for a jury trial on 3 May 11th, 2011, and he attended the pre-trial 4 conference held on June 7, 2011. The Crown 5 submitted its available dates for trial on June 6 25th, 2011. 7 On August 2nd, 2011, Mr. Caesar's legal 8 representation changed again to Mr. Tracy Bock. 9 Mr. Bock submitted available dates in early 10 October of 2011. 11 The matter was scheduled for a jury trial to 12 take place in Fort Good Hope on May 7th, 2012. 13 Unfortunately, the Court was unable to empanel a 14 jury, resulting in a mistrial. The case was 15 returned to the list to be rescheduled. 16 The Court record shows that at list 17 scheduling on May 11th, 2012, the Court suggested 18 setting a date of February 18th, 2013, for a jury 19 trial to be held in Inuvik. Defence counsel did 20 not at that time express concerns about this or 21 seek an earlier date. The case was subsequently 22 scheduled for that date. 23 Mr. Caesar's representation changed one more 24 time to his present counsel, Mr. Martin, in 25 September of 2012. This had no impact on the 26 trial date, nor did it cause any delay. 27 Mr. Caesar became very ill shortly before Official Court Reporters 2 1 his scheduled trial in Inuvik. His lawyer sought 2 and was granted an adjournment on his behalf on 3 February 14th, 2013. The chambers judge noted 4 that this was a second adjournment and directed 5 that counsel submit their available dates within 6 30 days. She also noted that although the Court 7 would endeavour to give the case priority for 8 scheduling, the availability of resources and 9 time for a jury trial in Inuvik was limited. The 10 first date that both Crown and defence counsel 11 were available for trial which could be 12 accommodated by the Court was this week here in 13 Norman Wells. 14 There is a very well-established legal 15 framework in which the Court must conduct its 16 analysis to determine if there has been a breach 17 of Section 11(b) of the Charter. The Court has 18 to consider the length of the delay and ask 19 itself if the duration is such to warrant a 20 further inquiry. It has to look at the reasons 21 for the delay and the prejudice to the accused. 22 The Court must examine the reasons for the delay 23 in light of inherent time requirements, the 24 actions of the accused, the actions of the Crown, 25 and institutional delay. 26 The factors leading to the delay must be 27 balanced against the interests that Section 11(b) Official Court Reporters 3 1 is intended to protect, namely the individual's 2 right to security of person, liberty, and a fair 3 trial, as well as society's interest in ensuring 4 that accused persons are tried promptly and that 5 those who break the law are tried according to 6 law. 7 Certain guidelines have been suggested in 8 the jurisprudence to assist courts in determining 9 if the delay is excessive, but these are 10 guidelines only and each case has to be 11 determined in light of its own particular facts. 12 With respect to the length of the delay, the 13 Crown conceded that the overall length of time it 14 took for this matter to get to trial, being 39 15 months, is such that an inquiry is warranted. 16 With respect to the reasons for the delay, I 17 will deal first with the inherent time 18 requirements and the delay attributable to the 19 Crown. I address these together because, in my 20 view, neither the inherent time requirements nor 21 the actions of the Crown contributed to the delay 22 in getting this matter heard in any significant 23 way. There was not a bail hearing and there does 24 not appear to have been any type of issue with 25 respect to the timing of disclosure. The matter 26 proceeded to a preliminary inquiry about eight 27 month following the first appearance and about Official Court Reporters 4 1 half of that time is attributable to the 2 Defendant. The actions of the Defendant and the 3 institutional delay account for the lion's share 4 of the time it has taken to get this matter to 5 trial. 6 Mr. Caesar's actions and personal 7 circumstances contributed to the delay in three 8 key respects. As noted, Mr. Caesar required 9 three adjournments before he was in a position to 10 proceed to the preliminary inquiry. Now, there 11 is certainly no suggestion whatsoever that 12 Mr. Caesar's difficulties in securing legal 13 representation stemmed from a pattern of hiring 14 and firing lawyers. He was not abusing his 15 rights in any way. As well, it is an accused's 16 right to have counsel, and it is of course very 17 important that the accused have counsel in which 18 he or she has trust and confidence. 19 Nevertheless, the time it took for Mr. Caesar to 20 find and secure legal representation and to get 21 on with things took time and that time was well 22 beyond what I consider to be the parameters of 23 inherent delay. 24 There was an additional delay when 25 Mr. Caesar's legal representation changed from 26 Mr. Khan to Mr. Bock. Again, I do not suggest 27 that either Mr. Caesar or Mr. Bock were in any Official Court Reporters 5 1 way dilatory, but the change in counsel meant 2 that there was an additional two months, 3 approximately, before both sides indicated they 4 were ready to proceed to trial and the first 5 trial date could be scheduled. 6 Finally, Mr. Caesar contributed to the delay 7 by his sudden illness. There is no suggestion 8 that this was Mr. Caesar's fault. It was, of 9 course, entirely beyond his control. But because 10 of his illness, a jury trial which had already 11 been rescheduled once was adjourned to 12 accommodate him and this had immediate delay 13 implications. It also had consequences for the 14 institutional delay. 15 In all, I find that Mr. Caesar contributed 16 to approximately thirteen and a half months of 17 the overall thirty-nine-month period that it has 18 taken to get this matter to trial. 19 Institutional delay is the delay 20 attributable to systemic factors and it is 21 counted as the period of time from when the 22 parties are ready to proceed to trial until the 23 trial can be scheduled. That accounts for most 24 of the delay in this case, although I do not find 25 it unreasonable in the circumstances. 26 In this case, the institutional delay is 27 approximately twenty-two months. This is Official Court Reporters 6 1 comprised of four months between the December 2 8th, 2010, appearance and the March 23rd, 2011, 3 preliminary inquiry, the eight months between 4 October of 2011, which is when both the Crown and 5 defence were ready to proceed to trial the first 6 time, and the first scheduled trial date in Fort 7 Good Hope, and the ten months between that date 8 and the second scheduled trial in Inuvik. 9 There is a practice, which was discussed at 10 length by counsel at the hearing, of trying cases 11 in the Northwest Territories where the offence is 12 alleged to have occurred. Doing this serves a 13 number of very good purposes. As a practical 14 matter, it often means that witnesses need not 15 travel away from their community to testify about 16 something that happened in their home community. 17 It also allows people throughout the Northwest 18 Territories to see the justice system at work in 19 their communities. The court process becomes 20 something tangible and accessible. It is not 21 something that just happens in Yellowknife or 22 something that only those who live in larger 23 centres get to see and those who live in smaller 24 centres only hear about secondhand. 25 With jury trials in particular, the practice 26 is very valuable. 27 Sitting on a jury is an important Official Court Reporters 7 1 responsibility for all citizens and permanent 2 residents of Canada. It is also a privilege. 3 Holding jury trials throughout the North, insofar 4 as that is practicable, provides opportunities 5 for a wide array of individuals to sit as jurors 6 and participate directly in the justice system. 7 The privilege and responsibility is not just 8 reserved for those in certain geographical 9 locations. For an accused, it means that he or 10 she has access to a jury panel that is more 11 likely to be representative of that person's 12 community and culture. 13 This practice is not without consequences, 14 however. Among these is the possibility that is 15 somewhat longer wait for a trial than one would 16 experience in Yellowknife or southern Canada or a 17 longer wait than one would experience upon 18 electing to be tried by judge alone, is possible. 19 In some communities, there is a real risk that 20 the population base is not large enough to allow 21 the Court to empanel a jury. This is especially 22 so in our smaller communities where it is a given 23 that there will be a certain number of 24 individuals served with jury summonses who have a 25 conflict of interest due to a relationship with 26 an accused or a complainant or who feel they 27 cannot be impartial because they have knowledge Official Court Reporters 8 1 of or have formed an opinion about the case. 2 There is also bound to be a certain number of 3 individuals unable to serve due to personal or 4 financial hardship. 5 The reality is that resources are limited in 6 smaller communities. People do not have the same 7 access to child care, casual workers, or 8 substitute teachers, for example. And, of 9 course, a certain number of jurors will be 10 challenged necessarily by the Crown and defence 11 counsel. All of this adds up to the definite 12 possibility that there could be a mistrial, and 13 that causes delay. That is what happened here, 14 so another trial had to be scheduled. 15 Another reality is that setting down jury 16 trials anywhere in the Northwest Territories 17 requires a coordination of a number of different 18 people and things, including judicial schedules, 19 ensuring there is a sufficient complement of 20 court staff, and, of course, the lawyers. 21 Facilities are also limited. We share those 22 facilities with the communities were we sit. 23 They are not always available because sometimes 24 communities need to use them. We also share the 25 availability of facilities with the Territorial 26 Court, which sits often. At times it might not 27 be feasible to hold a jury trial in a particular Official Court Reporters 9 1 community. There may be assemblies or festivals, 2 it may be a time of the year when people are out 3 on the land. Similarly, there may be activities 4 happening in a particular community that limits 5 the availability of air travel and accommodation 6 for the court parties, the lawyers, the 7 witnesses, and the accused. So given all of 8 these circumstances under which this court 9 operates, the institutional delay in this case is 10 not in and of itself unreasonable. The reality 11 is that the options are limited and the delay is 12 explained. 13 Prejudice to the accused is a key 14 consideration, and, in my view, regardless of any 15 other findings, Mr. Caesar's application would 16 not succeed because there is no basis for a 17 finding that he suffered any prejudice, actual or 18 inferred, as a result of the time it has taken to 19 get this matter to trial. 20 An accused may lead evidence of specific 21 prejudice and the Court can also infer prejudice 22 from the length of the delay. As noted in R. v. 23 Morin, the longer the delay, the more likely that 24 such an inference will be drawn. Prejudice is 25 also assessed in light of the interests that 26 Section 11(b) protect, namely liberty in the 27 context of pre-trial detention and the impact of Official Court Reporters 10 1 bail conditions; security of the person, 2 specifically, being free from the stress and 3 stigma of a criminal charge hanging over one's 4 head; and, finally, the right to make a full 5 answer in defence. 6 Mr. Caesar was released on a promise to 7 appear and on condition that he would have no 8 contact with the complainant. Other than that, 9 his liberty interests have not been impaired. 10 In his affidavit and to a certain extent in 11 the answers he gave to questions put to him by 12 Crown counsel during cross-examination on his 13 affidavit in this matter, Mr. Caesar suggested 14 that his right to the security of the person has 15 been affected because of the outstanding charges. 16 Specifically, he asserted that he has been unable 17 to find employment since 2010; that he feels he 18 is being treated by others in the community with 19 suspicion; that people in the community of Fort 20 Good Hope gossip about the charges again him; 21 that having these charges over him has caused him 22 to increase his consumption of alcohol, which, in 23 turn, may have led to his conviction for impaired 24 driving which occurred earlier this year; that he 25 has suffered physically by losing weight and he 26 has difficulty sleeping; and, finally, that his 27 overall standing in the community has been Official Court Reporters 11 1 diminished. 2 Mr. Caesar's suggestion that he has been 3 prejudiced in employment and that his standing in 4 the community is negatively affected is not 5 supported by the evidence. 6 With respect to employment, it appears that 7 he perceives that he is being screened out of 8 potential positions because of the charges, yet 9 he has not been advised by any potential 10 employers that this is the reason, nor has he 11 ever been asked whether there are outstanding 12 charges against him. There are any number of 13 reasons that he is not succeeding in his efforts 14 to secure employment, including the possibility 15 that other candidates are thought to be better 16 qualified. 17 With respect to his standing in the 18 community, it was brought out during 19 cross-examination, although it was not stated 20 directly in Mr. Caesar's affidavit, that he was 21 elected to council earlier this year. There were 22 nine positions and twenty-two candidates. When 23 questioned on whether this indicates that he has 24 not, in fact, lost his standing in the community, 25 Mr. Caesar said he believes that he was elected 26 not because of his popularity or unpopularity but 27 rather because of his perceived ability to do the Official Court Reporters 12 1 job. Now, obviously the Court cannot get into 2 the minds of voters, but it is reasonable to 3 infer that if a person has lost their standing in 4 the community to the point where their right to 5 the security of the person has been threatened, 6 it is unlikely that they will be successful in a 7 contested election. 8 I do not accept Mr. Caesar's claim that he 9 started drinking more heavily leading to a 10 conviction for impaired driving because of these 11 charges. Consuming alcohol is a choice that he 12 made and he has himself to blame for those 13 consequences. 14 I also reject Mr. Caesar's assertion that 15 having these charges outstanding has caused him 16 to lose weight or have difficulty sleeping. 17 While I do not suggest he is being untruthful in 18 his assertions about what is going on with his 19 health, the fact is there is no medical evidence 20 tieing either of these things to the outstanding 21 charges. The medical evidence is that Mr. Caesar 22 suddenly fell and was seriously ill, about six 23 and a half months ago. He required 24 hospitalization and a significant period of 25 convalescence. If one was to draw a conclusion 26 about what is at the root of his current health 27 problems, this would be the only logical one. Official Court Reporters 13 1 Mr. Caesar offered no specific evidence 2 about gossip. He did say that after the police 3 started the investigation in 2007, he had to 4 field questions from community members. That was 5 the extent of it, though, and, from that, I 6 cannot conclude that he suffered the kind of 7 prejudice required to satisfy or justify a stay 8 of proceedings. 9 It has been said that delay has the most 10 significant effect on the ability to make a full 11 answer in defence. As stated by Justice 12 McLachlin, as she was then, in R. v. Morin: 13 "Witnesses forget, witnesses disappear. The 14 quality of evidence may deteriorate." 15 Mr. Caesar says that he is prejudiced 16 because some of the witnesses who would have been 17 at the places where the events allegedly took 18 place are now deceased or no longer live in the 19 Northwest Territories. However, I do not find, 20 nor do I infer, that his ability to make full 21 answer in defence is impaired. 22 It is in everyone's interest, including 23 society's, that alleged criminal acts are 24 prosecuted as soon as possible. But in some 25 cases, as here, the acts simply do not come to 26 the attention of the authorities until long after 27 the fact. That is no reason to not proceed in Official Court Reporters 14 1 prosecuting wrongs. In this case, the offences 2 are alleged to have taken place in the early to 3 mid 1980s. In these historical cases, the 4 problems with lost witnesses and faded memories, 5 if there are, in fact, any, are more likely to 6 exist because of the actual age of the offence 7 rather than by the reason of passage of time 8 between the laying of charges and the trial. 9 Further, if an accused is going to assert this 10 argument in the context of an old offence, it is 11 not enough to simply state that unnamed witnesses 12 are deceased or have moved. The jeopardy must be 13 related to the alleged failure to prosecute the 14 charges within a reasonable time. So, for 15 example, the Court needs to know if the witnesses 16 or the witness passed away or became 17 incapacitated after the charges were laid. It is 18 also a reasonable expectation that the Court will 19 be advised why someone cannot be produced as a 20 witness. Similarly, to say that because they 21 have moved from the jurisdiction is not enough. 22 There are legal and technological processes that 23 can be used to facilitate testimony from 24 witnesses who are resident elsewhere. 25 In conclusion, there has been delay here, 26 but it is neither unreasonable nor unexplained. 27 Moreover, Mr. Caesar has not shown that he Official Court Reporters 15 1 suffered any specific prejudice and none can be 2 inferred from the circumstances. For these 3 reasons, the application was dismissed. 4 ................................. 5 6 7 Certified Pursuant to Rule 723 of the Rules of Court 8 9 10 Jane Romanowich, CSR(A) 11 Court Reporter 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Official Court Reporters 16
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.