Decision Content
R. v. K.M., 2015 NWTSC 37 S-1-YO-2014-000005
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
SITTING AS YOUTH JUSTICE COURT
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
K.M.
(A YOUNG PERSON)
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Transcript of the Oral Decision delivered by The Honourable
Justice L. A. Charbonneau, sitting in Yellowknife, in the
Northwest Territories, on the 27th day of July, 2015.
__________________________________________________________
The information contained herein is prohibited
from publication pursuant to s. 110 and 111 of
the Youth Criminal Justice Act and s. 648 of
the Criminal Code of Canada
APPEARANCES:
Ms. A. Piché and
Ms. J. Scott: Counsel for the Crown
Mr. C. Davison: Counsel for the Young Person
(Charge under s. 235(1) of the Criminal Code of Canada)
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1 THE COURT: Mr. M faces a charge of first
2 degree murder and his trial is scheduled to
3 proceed in January 2016. The events giving rise
4 to that charge occurred in Fort Good Hope, but
5 the trial will be proceeding in Yellowknife.
6 Mr. M has filed an application challenging
7 the constitutional validity of Section 642 of the
8 Criminal Code. That provision is in the part of
9 the Code that sets out the process for the
10 selection of the jury, and it is a provision that
11 arises when the jury panel is exhausted before a
12 full jury is empanelled.
13 The specific paragraph that is challenged by
14 the defence in its motion is the first paragraph
15 of the section and it reads as follows:
16 If a full jury and any alternate
jurors considered advisable cannot
17 be provided notwithstanding that
the relevant provisions of this
18 Part have been complied with, the
court may, at the request of the
19 prosecutor, order the sheriff or
other proper officer to summon
20 without delay as many persons,
whether qualified jurors or not,
21 as the court directs for the
purpose of providing a full jury
22 and alternate jurors.
23 Mr. M takes the position that the section as
24 it currently reads violates his rights under
25 paragraph 11(b) of the Charter because it gives
26 only to the Crown the right to have additional
27 persons summonsed when a jury panel is exhausted.
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1 The remedy that he seeks is to have the section
2 read down and have the words "at the request of
3 the prosecutor" struck from it. He wants this
4 application heard in advance of the trial.
5 The Crown has filed an application seeking
6 to have the hearing of this motion adjourned
7 until such time as Section 642 is actually
8 engaged. The Crown's position is that at this
9 point the application is premature and that the
10 Court should decline to hear it.
11 I will first talk about what I understand to
12 be the applicable legal principles in this
13 matter.
14 Conceptually, a moot issue and a premature
15 issue are completely different things. One is an
16 issue that was at one point a live issue but no
17 longer is. The other is an issue that could
18 arise, has not arisen yet and may not arise at
19 all. But despite this conceptual difference,
20 Crown and defence submit, and I agree with them,
21 that the legal principles that are engaged are
22 the same when dealing with both types of issues.
23 The underlying reasons why courts generally
24 do not entertain issues that are moot are very
25 similar to the reasons why courts do not
26 generally decide issues that have not yet arisen
27 and may not arise.
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1 The leading case on the doctrine of mootness
2 is Borowski v. Canada (Attorney General), [1989]
3 1 S.C.R. 342. The main principles that emerge
4 from that case are that courts do have the
5 discretion to entertain a legal issue even if it
6 is moot, and in deciding whether to exercise that
7 discretion, the Court should keep in mind the
8 reasons that underlie the general policy whereby
9 courts do not usually entertain moot issues. As
10 the Court said at page 358 of the decision:
11 To the extent that a particular
foundation for the practice is
12 either absent or its presence
tenuous, the reason for its
13 enforcement disappears or
diminishes.
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15 The foundations that were identified by the
16 Supreme Court in Borowski, that is, the reasons
17 why, in general, courts should not entertain
18 issues that are moot, were the following: First,
19 the desirability of issues being decided in an
20 adversarial context; second, the need to use
21 judicial resources efficiently; and, third, the
22 importance for courts to remain within their role
23 as the adjudicative branch in our political
24 framework, as opposed to intruding in the role of
25 the legislative branch.
26 The Supreme Court revisited the mootness
27 principles in the context of a criminal case, in
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1 R. v. Smith, 2004 SCC 14. The accused had been
2 convicted of murder, had appealed his conviction
3 but had died before the appeal could be heard.
4 The issue was whether the appeal should still
5 proceed. The Supreme Court reiterated the
6 general principles outlined in Borowski and said
7 they applied in the context of a criminal appeal.
8 But it added other factors to consider when
9 deciding whether to hear an appeal involving a
10 deceased person.
11 The Court said that the strength of the
12 ground of appeal was one of the factors that
13 should be considered. The Court also noted that
14 special circumstances might "transcend the death
15 of the individual" and make it appropriate to
16 hear the matter. Such special circumstances, the
17 Court said, include whether the case raises an
18 issue of general importance, particularly if it
19 is otherwise evasive of appellate review; whether
20 the case raises a systemic issue related to the
21 administration of justice; and whether the case
22 gives rise to collateral consequences to the
23 family of the deceased or to other interested
24 persons or to the public.
25 The case I am dealing with now of course is
26 not an appeal and it is also not a case where the
27 issue of mootness arises because of the death of
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1 one of the parties to the litigation. But it is
2 a criminal case and, for those reasons, I find
3 the principles articulated in Smith quite
4 relevant.
5 At paragraph 51 of the decision, the Supreme
6 Court summed up the nature of the analysis to be
7 undertaken and said:
8 What is necessary is that, at the
end of the day, the court weigh up
9 the different factors relevant to
a particular appeal, some of which
10 may favour continuation and others
not, to determine whether in the
11 particular case, notwithstanding
the general rule favouring
12 abatement, it is in the interests
of justice to proceed.
13
14 There are factors that weigh in favour of
15 not hearing this motion until Section 642 has
16 been engaged and there are other factors that
17 weigh in favour of hearing the motion before
18 knowing that for sure. In the end, I think the
19 decision to hear this matter or not in advance
20 does boil down to that basic question: whether
21 it is or not in the interests of justice to hear
22 and decide this issue knowing that it may not
23 actually arise in this case.
24 Of the three broad considerations evoked in
25 Borowski, I think the only one that is truly
26 engaged here is the concern for judicial economy.
27 The two others are not really a concern.
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1 As far as the need for an adversarial
2 context, the Crown has conceded, and I think it
3 is a fair and proper concession, that there will
4 be an adversarial context if this matter
5 proceeds. I have every confidence that I will
6 get thorough and full submissions from both Crown
7 and defence if this motion proceeds.
8 As for the importance of the Court remaining
9 within its proper role as the adjudicative branch
10 of government as opposed to the legislative one,
11 the principle is that courts are there to make
12 decisions about actual disputes. If courts
13 adjudicate on something that is not an actual
14 dispute, this may be seen as an improper
15 intrusion into the role of the legislative
16 branch.
17 That was the very concern expressed by this
18 court in Werner v. Molenkamp, 2009 NWTSC 1, which
19 was one of the cases referred to by the Crown.
20 In that case, what was at issue was whether a
21 senior administrative officer in Hay River had
22 exceeded her powers in dealing with a petition to
23 put the proposed amendment to a bylaw to a vote
24 by the citizens of Hay River. The senior
25 administrative officer had concluded that there
26 was an insufficient number of valid petitioners
27 to engage that process. In the end, the proposal
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1 to amend the bylaw was defeated and that is why
2 the issue was moot by the time the matter came to
3 a hearing.
4 In seeking a judicial review of the senior
5 administrative officer's decision in that case,
6 the applicant wanted the Court to look at the
7 scope of the officer's powers pursuant to certain
8 sections of the Cities, Towns and Villages Act.
9 The applicant was asking the Court to provide an
10 interpretation of those provisions that would
11 essentially create a whole framework for the
12 exercise of some of those powers. The Court
13 declined to engage in that analysis, in part, out
14 of concern for the respect of that proper role
15 for the courts.
16 Here, the situation is quite different.
17 What is at issue is not the interpretation of a
18 particular provision but its constitutional
19 validity. Assessing whether provisions of an Act
20 comply with the Charter is very much a part of
21 the Court's role in our system. The courts are
22 responsible for making sure that Parliament and
23 the legislatures of provincial governments comply
24 with the Charter when they enact legislation. So
25 I do not see here any concern about this motion
26 leading to an improper intrusion of the Court in
27 the field of the legislative branch.
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1 The concerns about judicial economy,
2 however, are clearly engaged. Judicial resources
3 are scarce, counsels' resources are also limited.
4 There already are a number of other issues that
5 need to be litigated on this matter in advance of
6 trial, and adding a constitutional challenge to
7 the list is not an insignificant matter. It
8 should not be done lightly in circumstances where
9 it is not clear that the issue will even arise.
10 In both Borowski and Smith, the Supreme
11 Court of Canada acknowledged that there are
12 circumstances where the deployment of judicial
13 resources for a moot issue is less of a concern.
14 If the issue is of public importance and its
15 resolution is in the public interest, the concern
16 about using judicial resources to deal with it is
17 lessened.
18 In Borowski, the Court said the use of
19 judicial resources to deal with a moot issue may
20 be warranted if the issue in question is of a
21 recurring nature and brief in duration. The
22 Court gave the example of an interlocutory
23 injunction prohibiting strike action during a
24 labour dispute.
25 In Smith, as I have already noted, the
26 Supreme Court talked about special circumstances
27 that might override the usual concerns about
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1 using judicial resources to deal with an appeal
2 rendered moot by the death of the appellant and
3 it gave the three specific examples that I have
4 mentioned already. I find it useful to look at
5 the present situation in light of those factors
6 that the Court talks about in Smith.
7 The first is the existence of a legal issue
8 that is of general public importance,
9 particularly if it is otherwise evasive of
10 appellate review.
11 From a practical point of view, the issue
12 that defence wishes to have addressed in this
13 case can potentially arise every time a jury
14 trial is held. In this jurisdiction, there is a
15 very large number of jury trials, and a
16 particular and somewhat unusual feature of this
17 jurisdiction, in comparison with most
18 jurisdictions in Canada except perhaps Nunavut,
19 is that in the Northwest Territories jury trials
20 are held in communities that have small
21 populations. Due to the size of the communities
22 and familial and other relationships within those
23 communities, it is quite normal and to be
24 expected that in every jury selection process, a
25 large number of prospective jurors ask to be
26 excused because they do not feel they can be
27 impartial. Indeed, for most jury selection
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1 processes this court undertakes, a large number
2 of people are excused. Because of this, in this
3 jurisdiction, it is not a rare occurrence that
4 the panel is exhausted and that Section 642 is,
5 in fact, engaged.
6 So this issue that the defence now wants a
7 ruling on, while it does not arise in every case,
8 is, I think, of a recurring nature in the context
9 of this jurisdiction. It is also an issue which
10 is very much evasive of appellate review. If the
11 Crown does not make the application, the result
12 is a mistrial. The matter then has to be
13 rescheduled. If an accused is later convicted
14 when the trial does proceed, the mistrial ordered
15 at the first attempt to hold the trial would not
16 be a ground of appeal on the trial that did
17 proceed.
18 Section 642 is a provision that could escape
19 appellate review or any form of judicial scrutiny
20 entirely unless it is examined before it is
21 actually engaged.
22 The second consideration mentioned in Smith
23 is whether the issue raised is a systemic issue
24 that relates to the administration of justice.
25 Here, the issue that the defence wants to raise
26 has to do with an alleged imbalance or unfairness
27 in the jury selection process and one that could
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1 potentially manifest in any jury trial. It would
2 be difficult not to see this as a systemic issue
3 that relates to the administration of justice.
4 The right to a jury trial is a fundamental one
5 and no one can question the importance of the
6 interests at stake in a criminal trial.
7 The third factor mentioned in the Smith case
8 is collateral consequences to others. As I have
9 already noted, the disposition of this particular
10 issue is not only relevant to the young person
11 charged here, it is potentially relevant to any
12 accused person who elects to have a jury trial.
13 Without conceding anything on the merits of
14 the defence's application or on the issue of
15 whether it would ever be appropriate to have this
16 issue heard in advance of trial in another case,
17 the Crown asked the Court during submissions to
18 consider that even if it were found to be proper
19 to deal with this issue in advance, is this the
20 right case to do it? The Crown says it is not,
21 first, because there are already a lot of issues
22 to be litigated in this case; it already has a
23 lot of layers of complexities and adding a
24 constitutional challenge to it, the Crown says,
25 is not a good use of resources. The second
26 reason that the Crown emphasized is that the risk
27 of the provision will even arise is extremely
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1 remote. This case is proceeding in Yellowknife,
2 which is the largest community in this
3 jurisdiction. And because it is a murder case,
4 the jury panel would likely be an expanded one,
5 meaning that more people would be summonsed for
6 jury duty.
7 These are valid points. It is the practice
8 of the Court to direct a larger panel be
9 summonsed for murder cases and other major cases.
10 It is also true that in Yellowknife jury trials,
11 it is more rare than in some other places that
12 the talesman procedure has to be resorted to. It
13 is not unheard of, but it does happen less
14 frequently than in some other places where the
15 Court sits.
16 On the other hand, there are other features
17 of this case that may result in a larger number
18 of people asking to be excused than might
19 otherwise be the case. The first is there is a
20 large number of witnesses. This increases the
21 risk of jury panel members being related to
22 someone connected to this case, even if it is
23 proceeding in a community other than where the
24 events are said to have happened. People move a
25 lot in the Northwest Territories. It would not
26 be surprising if there were Fort Good Hope
27 residents, or relatives of Fort Good Hope
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1 residents, or people connected to that community
2 who live in Yellowknife and may end up on our
3 jury panel.
4 The second reason is that by the standards
5 of this jurisdiction, this will be a longer trial
6 than most of our trials. It is scheduled to take
7 three weeks. A larger number of people may ask
8 to be excused because of this. Work related
9 issues, child care issues, existing travel
10 arrangements, medical travel are all issues that
11 come up frequently in jury selection processes
12 and their impact may be stronger on a trial that
13 is expected to take three weeks than it would be
14 for a trial expected to take one week. This may
15 add an element of challenge in the selection
16 process.
17 On balance, I do tend to agree with the
18 Crown that the risk of the jury panel being
19 exhausted is somewhat remote, but I am not
20 convinced that it is as remote as the Crown has
21 argued. I also accept the Crown's submission
22 that there will be other cases where the risk of
23 exhausting the jury panel will be greater than
24 perhaps in this case.
25 As I already said, the fundamental question
26 here boils down to what is in the interests of
27 justice. Considering that means considering the
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1 disadvantage and undesirability of using
2 resources and everyone's time to deal with this
3 issue knowing it may well not arise. But it also
4 means considering the risk of the issue arising
5 and not having been dealt with in advance, and
6 what the consequences of that might be.
7 As I said during the hearing of this
8 application, to me, the question presents in this
9 way: Where is the greater harm? If I were to
10 grant the Crown's adjournment application and it
11 turned out that Section 642 did become engaged
12 and the defence's motion had to be dealt with, I
13 think there is a very realistic risk it could
14 derail this trial entirely. We would have to
15 embark upon the hearing of the defence's motion,
16 which counsel seem to agree would require a day;
17 then the Court would need to rule on it. And
18 even if all that was done quickly and
19 efficiently, there would be an interruption of
20 the jury selection process while that takes place
21 and those days would be lost days as far as trial
22 time. In this jurisdiction, jury trials are
23 virtually never interrupted to resume several
24 weeks or months later, contrary to what sometimes
25 happens in southern Canada. And because of the
26 way our scheduling works and the demands of
27 circuit court, the limited infrastructure and
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1 resources, and the many logistical constraints
2 that we face, the Court's ability to simply add
3 time to a case in order to be able to finish it
4 is almost non-existent.
5 So simply put, the risk in dealing with this
6 issue only when and if it arises is that this
7 trial could be derailed and not completed in
8 January 2016. This would mean having to
9 reschedule it and it would mean substantial
10 additional delay. Whether it is from the
11 perspective of the person charged, who is
12 detained at this time, or from the perspective of
13 the witnesses who are to be called, or from the
14 perspective of the family of the deceased, I do
15 not think it is a desirable outcome and it is a
16 factor that weighs heavily in favour of dealing
17 with the issue in advance.
18 I have given a lot of thought about the
19 Crown's submission that perhaps there might be a
20 better case than this one to have the issue dealt
21 with, but I think many of the same problems would
22 arise. It seems to me, whatever case this issue
23 were raised in, refusing to deal with it in
24 advance of the trial would place the accused in a
25 catch-22 situation if they wanted to challenge
26 this provision. They would have the choice of
27 making the argument when the issue arises at the
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1 risk of having their own trial derailed, or not
2 raising it, to ensure that their trial proceeds
3 as scheduled. I do not think it is fair to
4 impose on any one accused the burden of
5 litigating this issue at the cost of possibly not
6 having their trial proceed as scheduled. For
7 that reason, my conclusion is that practically
8 speaking, this issue has to be dealt with in
9 advance of trial, whatever case it is to be
10 raised in.
11 As for whether this is the right case, I do
12 not see a compelling reason for it not to be this
13 case. The motion is filed, the matter has been
14 raised, and although everyone's schedules are
15 very packed, I am certain, there are still a
16 number of months between now and the trial and
17 hopefully it will be possible to find one day
18 over the next five and a half months where this
19 issue can be argued.
20 The other practical point I have given some
21 thought to is that if I were to grant the Crown's
22 adjournment application, there would remain that
23 possibility that the issue would arise and the
24 section would be engaged and then we would have
25 to proceed with the motion. That means that one
26 way or another, Crown and defence would have to
27 be essentially ready to argue this when and if it
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1 did arise. So work would have to be done,
2 presumably, and some resources expended on the
3 issue before anyone knows for sure that it will
4 arise. By contrast, if this gets heard ahead of
5 time, a hearing date can be set. I do not think
6 it needs to be in August. I think it would be
7 better if it were in the fall, actually. Counsel
8 would be able to deal with it when they are not
9 on the verge of starting the jury trial in a
10 first-degree murder case.
11 So, on balance, although I have to say I
12 found this to be a difficult decision to make, I
13 am not persuaded that this is the wrong case for
14 this matter to be argued. I am persuaded that
15 more harm than good would come from adjourning
16 the motion at the risk of having to deal with
17 this once the trial actually starts.
18 So although I do agree that at this point in
19 time the application is premature in the sense
20 that the issue has not arisen, I do think that
21 this is one of those perhaps rare cases where it
22 should be heard in advance to the trial.
23 For those reasons, the Crown's adjournment
24 application is dismissed.
25 (CONCLUSION OF ORAL DECISION)
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