Supreme Court
Decision Information
Decision information:
Abstract: Transcript of the Ruling on an Application to Change the Venue of the Trial and the Ruling on an Application for a Stay of Proceedings (Unreasonable Delay)
Decision Content
R. v. Blackduck, 2015 NWTSC 12 S-1-CR-2012-000069
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- and -
DARYLE JACKSON BLACKDUCK
Transcript of the Ruling on an Application to Change the
Venue of the Trial and the Ruling on an Application for a
Stay of Proceedings (Unreasonable Delay) delivered by The
Honourable Justice S. H. Smallwood, in Yellowknife, in the
Northwest Territories, on January 15, 2015.
APPEARANCES:
Mr. A. Godfrey: Counsel on behalf of the Crown
Mr. M. Martin: Counsel on behalf of the Accused
-------------------------------------
Charge under s. 271 C.C.
Ban on Publication of Complainant/Witness
pursuant to Section 486.4 of the Criminal Code
1 R. v. Daryle Jackson Blackduck
January 15, 2015 - Yellowknife
2 Rulings by Justice S. H. Smallwood
re Application to Change the Venue of the Trial
3 and Application for a Stay of Proceedings
(Unreasonable Delay)
4
5
6 THE COURT: The accused brought five
7 applications in this matter. The first was to
8 compel production of third party documents from
9 the Sheriff's Office and was abandoned as the
10 Sheriff had filed an affidavit on this
11 application which provided most of the
12 information that the accused sought.
13 The second application was to compel
14 production of third party documents from the
15 Supreme Court Registry in relation to jury trial
16 statistics for use on a change of venue
17 application. I dismissed that application on
18 January 9th, 2015.
19 The third application was for an adjournment
20 of the trial currently scheduled for January
21 19th, 2015, which I dismissed as well on January
22 9th, 2015.
23 The fourth application was to change the
24 venue of the accused's trial to Behchoko, or
25 alternately, Fort Providence or Fort Simpson.
26 The fifth application was for a judicial
27 stay of proceedings as a result of unreasonable
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1 delay.
2 Following a hearing on January 9th, 2015, I
3 adjourned the last two applications to today's
4 date to give my decision. I will first deal with
5 the application to change the venue of the trial
6 and then with the application for a stay of
7 proceedings as a result of unreasonable delay.
8
9 Ruling on Application to Change Venue of Trial
10 Mr. Blackduck is charged with one count of
11 sexual assault, contrary to section 271 of the
12 Criminal Code. He is alleged to have committed a
13 sexual assault on the complainant in the
14 community of Behchoko in October 2011. His trial
15 is scheduled to commence on Monday, January 19th,
16 2015, in Yellowknife.
17 This is the third scheduled trial date for
18 Mr. Blackduck. There is no dispute about what
19 happened with respect to the two previously
20 scheduled trials. A transcript of all of the
21 proceedings has been filed.
22 The first trial was scheduled for November
23 4th, 2013, in Behchoko, and was adjourned at the
24 request of the Crown because the complainant's
25 infant son had a medical appointment in Edmonton
26 which might require surgery. The trial was
27 subsequently rescheduled for April 28th, 2014,
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1 again to be held in Behchoko.
2 On April 28th, 2014, there was a jury panel
3 list returned of 120 persons who had been served
4 jury summonses. Of those, less than half — 57
5 people — attended jury selection that morning.
6 Jury selection proceeded and a number of people
7 were excused by agreement of the Crown and
8 defence. Other people came forward and were
9 excused for various reasons, which included being
10 related or close to the accused or other
11 witnesses involved in this case, their inability
12 to understand English and for personal hardship.
13 Six jurors were selected before the initial
14 jury panel was exhausted. One juror was
15 subsequently excused for reasons of personal
16 hardship. The Crown applied, pursuant to Section
17 642 of the Criminal Code, for the summoning of
18 talesmen, which is to have additional community
19 members summoned when a jury panel has been
20 exhausted and a full jury has not yet been
21 selected. I granted the application; the Deputy
22 Sheriff was directed to summons approximately 30
23 talesmen for jury selection.
24 The Deputy Sheriff summoned 23 talesmen and
25 also directed seven people who had missed jury
26 selection that morning to return for the
27 continuation of jury selection that afternoon.
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1 When court resumed, defence counsel brought
2 an application, pursuant to section 629 of the
3 Criminal Code, to challenge the jury panel that
4 had been assembled by the Deputy Sheriff pursuant
5 to the talesmen process. After hearing
6 submissions, I dismissed the application and jury
7 selection continued the following day.
8 On that date 25 people attended for jury
9 selection. Two people were excused by the
10 agreement of counsel and a number of other
11 persons were excused for various reasons. Four
12 more jurors were selected before the jury panel
13 was exhausted. At the end of jury selection,
14 nine jurors had been selected with the Crown
15 using six peremptory challenges while the defence
16 had used all of its peremptory challenges. The
17 Crown did not seek to have further talesmen
18 summoned. As a full jury had not been selected,
19 a mistrial was declared.
20 Following the declaration of a mistrial, the
21 scheduling of a third trial and the venue of the
22 trial were discussed. The court invited counsel
23 to make submissions with respect to the
24 scheduling of the trial and the venue. Counsel
25 for Mr. Blackduck indicated that he wished the
26 venue to be either Fort Providence or Fort
27 Simpson. His preference was for either of those
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1 communities over Yellowknife. His view was that
2 those communities were more culturally similar to
3 Behchoko and were more representative of the
4 Aboriginal population by ratio in those
5 communities.
6 When asked if he agreed that the court
7 should not attempt to have another trial in
8 Behchoko, defence counsel's response was that his
9 preference would be to have the trial in Behchoko
10 but acknowledged that there were difficulties
11 with getting a jury in Behchoko and that his next
12 preference would be to have the trial held in
13 Fort Providence or Fort Simpson. The Crown's
14 position was that given the inability to select a
15 full jury in Behchoko that week, the trial should
16 be held in another community. The Crown
17 reiterated the concerns the court had expressed
18 earlier with respect to the matter becoming dated
19 and there being some urgency to schedule the
20 trial and indicated that the preference of the
21 Crown was to hold the trial in Yellowknife.
22 The Crown noted that the complainant lived
23 in Yellowknife and that the other witnesses for
24 the Crown did not reside in the jurisdiction and
25 would have to travel to Yellowknife and then on
26 to another community in order to attend the next
27 trial. So for convenience, Yellowknife was also
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1 the preferred venue.
2 As well, the Crown noted that his
3 understanding was that more court time was
4 available in Yellowknife than would be in some of
5 the other communities and that to expedite
6 matters the Crown was suggesting that Yellowknife
7 was the most appropriate venue.
8 Defence counsel advised that with respect to
9 the convenience of witnesses, the accused lived
10 in Edmonton and had driven to Behchoko for his
11 trial, so that Fort Providence would be the most
12 convenient place for him to attend as the accused
13 would be driving. And I note that when someone
14 drives from Edmonton, of the suggested
15 communities, the first to be reached would be
16 Fort Providence; continuing down the highway
17 approximately two hours later one would reach
18 Behchoko; and a further hour or so down the road
19 is Yellowknife. Fort Simpson is also accessible
20 by road but requires taking a different highway
21 prior to reaching Fort Providence.
22 Defence counsel also advised that Heidi
23 Adzin, who is the accused's common-law spouse and
24 had been subpoenaed for the trial, also lived in
25 Edmonton.
26 Ultimately, the court noted that the
27 prospect of having a further jury trial in
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1 Behchoko was unlikely given the problems that had
2 been experienced in trying to empanel a jury.
3 And because of the concerns regarding delay, the
4 court did not direct where the specific venue
5 would be. The court stated at page 152:
6 In the circumstances, I am not going
to direct where the specific venue
7 will be. I think it is important
that this trial go ahead as soon as
8 possible. So that will be in large
part determined by the availability
9 of counsel (the Crown and defence)
and the availability you provide and
10 whether there is a judge and a
courtroom available. So I am going
11 to leave it to the scheduling judge
with respect to the venue with the
12 note -- sort of a notation that we
are trying to get this matter
13 scheduled quickly. So your
preferences with respect to the
14 venue will be noted, but one of the
priorities will be to try -- where
15 we can have this trial in terms of
convenience and where it's -- where
16 the earliest availability is to have
the trial.
17
18 Counsel were directed to provide their
19 availability for another trial within one week,
20 by May 6th, 2014. Counsel provided their
21 availability, and on May 21st, 2014, the third
22 trial was scheduled for January 19th, 2015, in
23 Yellowknife.
24 The accused filed his application for change
25 of venue on December 9, 2014, to be heard on a
26 date and time to be set by the court. Counsel
27 provided their availability for a hearing and the
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1 hearing was scheduled for January 9th, 2015.
2 The grounds in the amended notice of motion
3 encompass two areas:
4 1. The accused's application for leave to appeal
5 to the Supreme Court of Canada from my decision
6 of April 29, 2014, dismissing the application
7 challenging the panel of talesmen summoned by the
8 Deputy Sheriff; and
9 2. That the accused, who is an Aboriginal
10 person, is entitled to an impartial and
11 representative jury, neither of which can be
12 obtained in Yellowknife.
13 In submissions, defence counsel argued that
14 had I granted the application challenging the
15 panel of talesmen and a proper jury selection
16 process followed at that time, a jury could have
17 been empanelled in Behchoko in April 2014 and for
18 that reason another trial should be attempted in
19 Behchoko. Defence counsel also argued that a
20 jury could be empanelled in Fort Providence or
21 Fort Simpson as the accused had no relatives in
22 those communities and only a few friends in Fort
23 Providence. Any delays associated with
24 rescheduling would be borne by the accused, as
25 per the comments of Justice Vertes in R. v.
26 Beaverho, 2000 NWTSC 19, at paragraph 61.
27 Defence counsel also argued against holding
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1 the trial in Yellowknife, arguing that
2 considering the demographic makeup of the
3 communities in question, Fort Providence is
4 similar to Behchoko in its proportion of
5 Aboriginal people living in the community. The
6 accused argued that he has a right to a
7 representative and impartial jury, which he says
8 cannot be achieved in Yellowknife. He says that
9 the evidence of Mr. Blackduck on the application
10 supports this as he has experienced
11 discrimination in Yellowknife and this should
12 raise concerns with the way Aboriginal accused
13 are treated by this community. Counsel referred
14 to jury statistics from 2010 as demonstrating
15 that accused were convicted twice as often in
16 Yellowknife as in other communities. As well,
17 counsel argued that the proportion of Aboriginal
18 people in Yellowknife is so low that a
19 representative jury cannot be achieved.
20 The Crown argued that this trial was set in
21 May 2014 and the venue was determined to be
22 Yellowknife. The accused has had months to bring
23 this application but has waited until shortly
24 before the trial to do so. The Crown cites the
25 delay that has occurred in this case and that
26 this should be a concern for the court, as well
27 as notes the problems in attempting to select a
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1 jury in Behchoko go beyond just the talesmen
2 issue. The Crown argues that Yellowknife does
3 have a significant Aboriginal population and that
4 it is possible to select a representative jury.
5 The Crown argues that the test to change the
6 venue is that it has to be expedient to the ends
7 of justice, and at this point, this late in the
8 process, the applicant has not met the onus that
9 it is expedient to the ends of justice.
10 In considering an application to change the
11 venue of the trial, section 599(1) of the
12 Criminal Code and rule 37 of the Criminal
13 Procedure Rules are relevant. Section 599(1) of
14 the Criminal Code states, in part:
15
A court before which an accused is
16 or may be indicted, at any term or
sittings thereof, or a judge who may
17 hold or sit in that court, may at
any time before or after an
18 indictment is found, upon the
application of the prosecutor or the
19 accused, order the trial to be held
in a territorial division in the
20 same province other than that in
which the offence would otherwise be
21 tried if
(a) it appears expedient to the ends
22 of justice...
23
24 Rule 37 of the Criminal Procedure Rules
25 state:
26 (1) Unless the convenience of the
parties and witnesses otherwise
27 requires, a trial shall be held in
the community
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1 (a) at or nearest the place where
the offence is alleged to have been
2 committed; and
(b) in which there are adequate
3 facilities available to house the
court and jury and to conduct the
4 trial.
5
Rule 37(6) says:
6
Nothing in this rule limits the
7 discretion of the Court to determine
the place of trial.
8
9 The general rule, which is well-known and
10 has been commented on in many of the cases, is
11 that the Supreme Court of the Northwest
12 Territories has the tradition of holding jury
13 trials in the communities where the offences are
14 alleged to have occurred. This has occurred even
15 in small communities, although more recently,
16 because of the size of some of the smaller
17 communities and historic problems that have
18 arisen in attempting to select juries in those
19 communities, trials have been scheduled in larger
20 communities in the same region often without
21 first attempting to select a jury in the smaller
22 community.
23 The tradition of the court is a
24 long-standing one, but it has also been
25 acknowledged in the cases that the tradition must
26 be realistically applied and changes in society
27 over time may cause the tradition to be adjusted.
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1 There have been several cases from this
2 jurisdiction which deal with applications for a
3 change of venue. Changes of venue have been
4 ordered in the past for reasons such as community
5 divisiveness or hostility, psychological harm to
6 or oppression of witnesses, community
7 prejudgment, or where attempts to obtain a jury
8 in a community have failed. Changes of venue
9 have also been denied, even where a trial is
10 scheduled to be held in a small community where
11 there are close family ties and intense community
12 interest in the case. (See R. v. Beaverho, at
13 paragraph 29, for a list of cases and reasons for
14 granting or denying a change of venue).
15 A number of principles have emerged from
16 these cases which were referred to in R. v.
17 Bonnetrouge, 2010 NWTSC 60, at paragraph 13:
18
From the cases referred to and
19 others submitted by counsel, as well
as the governing legislation, I
20 extract the following principles:
a) a change of venue may be granted
21 if it is expedient to the ends of
justice; b) the Judge has a wide
22 discretion which is to be exercised
with caution; c) the circumstances
23 of the particular case must be
examined carefully to determine what
24 is expedient to the ends of justice;
d) the desirability that a jury
25 trial be held in the community where
the offence is alleged to have taken
26 place should be balanced with the
practicalities of holding jury
27 trials in small communities,
including the fact that many people
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1 are related to each other; e) the
reasons for and against holding jury
2 trials in small communities may
change over time; and f) the
3 ultimate aim is always a fair trial
with an impartial jury.
4
5 The onus is on the applicant to establish
6 the grounds upon which it relies for a change of
7 venue and, ultimately, the applicant must
8 establish that the change of venue is expedient
9 to the ends of justice: (Bonnetrouge, paragraph
10 14). In this case the onus is on the accused.
11 Counsel have provided several cases which I
12 have reviewed. I note that the issue in Beaverho
13 and R. v. Lafferty, 2010 NWTSC 36, was somewhat
14 different. In those cases an unsuccessful
15 attempt had been made to hold a jury trial in the
16 community where the offence was alleged to have
17 occurred and the court heard submissions from
18 counsel as to where the next trial should be
19 held. The issue before the court in Beaverho and
20 Lafferty was where to hold the next trial. In
21 this case the trial date has been set and the
22 venue determined. The issue is whether to change
23 the place of trial. Beaverho and Lafferty are
24 helpful because the principles to consider are
25 the same and both cases provide useful analysis
26 of the relevant factors.
27 As noted in Lafferty, at paragraph 9:
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1
But different considerations become
2 engaged where, as here, an attempt
to empanel a jury in a community has
3 failed, and the trial has to be
rescheduled. These considerations
4 include the responsible use by the
Court of its resources, and broader
5 concerns about the administration of
justice.
6
7 This case is similar because there has been an
8 attempt to empanel a jury in Behchoko, which was
9 unsuccessful, and the court must now consider
10 whether the trial should be rescheduled, keeping
11 in mind the responsible use of court resources
12 and concerns about the administration of justice.
13 One of the concerns, as noted in Lafferty,
14 is delay. Delay is a relevant consideration in
15 situations where a previous attempt to empanel a
16 jury has failed. Delay in these situations is
17 always something the court has to keep in mind.
18 In this case it is particularly relevant as this
19 is the third scheduled trial date. It has been
20 38 and a half months since the accused was first
21 charged with this offence, and the accused has
22 brought an application for a judicial stay based
23 on unreasonable delay. To change the venue of
24 the trial a few days before the scheduled third
25 trial date would inevitably result in further
26 delay. To schedule a new trial in Behchoko, Fort
27 Providence or Fort Simpson would result in a
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1 delay of several more months.
2 The process of scheduling a trial is not as
3 simple as just picking a date and saying that is
4 when the trial will occur. Jury trials in this
5 jurisdiction are scheduled based on a number of
6 factors. The availability of Crown and defence
7 counsel, as well as the witnesses, is one factor.
8 The availability of a judge in a jurisdiction
9 where there are only four resident judges, and
10 there is court scheduled every week in
11 Yellowknife, is another factor. As well, in many
12 communities outside of Yellowknife, jury trials
13 are held in community facilities because there
14 are no court houses. Those facilities are also
15 used by the communities for regular community
16 events, as well as special occasions like
17 assemblies or gatherings. Those facilities are
18 also used by the Territorial Court which sits in
19 the communities more often than the Supreme Court
20 does. As well, during certain times of the year
21 there may be events in communities that limit the
22 availability of persons to sit on the jury and
23 may result in insufficient accommodation for
24 those involved in the trial. All of this has to
25 be considered prior to scheduling a trial in the
26 community outside of Yellowknife.
27 Once a jury trial is scheduled, the process
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1 of creating a jury panel also takes time. The
2 affidavit of Cory Pond, who is the Sheriff in the
3 Northwest Territories, was filed in response to
4 the application for production of third party
5 documents and explains the process. The process
6 involves using a computer system, called the jury
7 management system, to randomly create a jury
8 panel. For Yellowknife and Hay River a jury
9 panel is composed of 300 people; in other
10 communities the jury panel is 250 people. Once
11 the panel list has been prepared, the jury panel
12 list is certified pursuant to section 7 of the
13 Jury Act. Once this occurs, a summons is issued
14 for each person on the panel and then served on
15 each person. Service occurs by personal service
16 or by leaving the summons with a responsible
17 member of the household. Then there are further
18 steps the Sheriff takes with respect to exempting
19 people before preparing the nominal list one week
20 prior to trial. The process of creating a jury
21 panel list starts approximately eight weeks prior
22 to the trial date, and in this case the steps to
23 prepare a jury panel began on November 26th,
24 2014. While I expect that the process could
25 occur in a shorter time frame, if required, the
26 steps involved to create the panel and to serve
27 each person take time and would still take
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1 several weeks to complete. What this means is
2 that the January 19th, 2015, trial date in
3 Yellowknife could not simply be rescheduled to
4 occur that same week in Behchoko, Fort Providence
5 or Fort Simpson, and at this point that is
6 clearly impossible.
7 Another consideration, particularly with
8 respect to the accused's request that the trial
9 occur in Behchoko, is what has already occurred.
10 If a further attempt to hold the trial in
11 Behchoko was again unsuccessful, it would result
12 in even more delay. The attempt to empanel a
13 jury in Behchoko in April 2014 was unsuccessful
14 for several reasons. The number of prospective
15 jurors was reduced because of the high number of
16 people who failed to attend the jury selection
17 process and the number of people who were
18 excused, either by consent of counsel or by the
19 court, as a result of being related to or close
20 to the accused or another witness, their
21 inability to understand the English language and
22 personal hardship. It is unclear why so many
23 people failed to attend in response to the jury
24 summons. There was no indication that there was
25 a funeral or other community event which might
26 explain why so many people did not attend. As
27 well, this had been the second time the court had
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1 been in Behchoko in a short period, where the
2 attendance in response to jury summonses was very
3 low and without explanation. This may turn out
4 to be a trend in Behchoko, or it could be an
5 aberration because juries have been selected on
6 many occasions previously in Behchoko without
7 difficulty. Overall, it raises concerns about
8 making another attempt to select a jury in
9 Behchoko in this matter.
10 Defence has argued that had I granted the
11 application challenging the panel assembled as a
12 result of the talesmen process, the Deputy
13 Sheriff could have been ordered to assemble a new
14 panel and a jury may have successfully been
15 empanelled. As well, had the Crown made a second
16 request for talesmen, a jury could have been
17 successfully empanelled.
18 In April 2014 when I ordered talesmen, I
19 directed the Deputy Sheriff to summon
20 approximately 30 talesmen for jury selection.
21 That number was somewhat higher than what is
22 usually ordered and was higher than what the
23 Deputy Sheriff was accustomed to summoning for
24 talesmen. That number was required to fill
25 initially seven positions on the jury — six
26 jurors and an alternate. One juror was
27 subsequently excused, so ultimately eight jurors
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1 had to be selected. Following the talesmen
2 process, four jurors were selected and three
3 jurors and an alternate had yet to be selected.
4 In summoning members of the community, the
5 Deputy Sheriff testified that he went to all
6 public places that he was aware of in the
7 community, with the exception of the grocery
8 store which he did not go to because he ran out
9 of time.
10 In my view, had I granted the application
11 challenging the jury panel assembled for
12 talesmen, it is unlikely that a jury could have
13 been successfully empanelled. The Deputy Sheriff
14 would have had to summons a significant number of
15 people so that a jury panel large enough to
16 empanel eight jurors could be assembled. Again,
17 those people would have also had the opportunity
18 to come forward and seek to be excused if they
19 were related to or close to the accused or other
20 witnesses or if they had another reason for not
21 being able to serve on the jury. In my
22 experience, people in Behchoko frequently come
23 forward to ask to be excused for various reasons,
24 and I do not expect that the situation would have
25 been any different had a new panel of talesmen
26 been ordered. As well, in my experience,
27 expecting to empanel more than half the jury
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1 through the talesmen process is unrealistic.
2 Similarly, it is unlikely that a jury could
3 have been successfully empanelled had the Crown
4 made a second request for talesmen. In my
5 experience, multiple requests from the Crown for
6 talesmen are not the norm, although they have
7 occurred more frequently recently. It is the
8 discretionary decision of the Crown to decide
9 whether or not to make the application in the
10 first place. There may be repercussions if the
11 Crown fails to request talesmen, but that is a
12 factor the Crown must consider in deciding
13 whether to make the request; and whether the
14 Crown does make the application or not, it does
15 not generally require an explanation or
16 justification.
17 Considering the response rate to the jury
18 summons, that there was a panel of talesmen
19 assembled and a number of people who were excused
20 for the reasons I referred to, I think it
21 unlikely that a second request for talesmen would
22 have resulted in the remaining four positions on
23 the jury being filled. Overall, there is no
24 basis to conclude that had things occurred
25 differently in April 2014, that a jury could have
26 been successfully empanelled in Behchoko.
27 Similarly, there is nothing to suggest that
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1 another attempt in Behchoko would be any more
2 successful than the last attempt.
3 The accused has also argued that he cannot
4 get a jury that is impartial and representative
5 in Yellowknife. The accused testified on the
6 application that he lived in Yellowknife for
7 approximately 11 years when he was from the ages
8 of four to 15 years old. He described
9 discrimination that he experienced that he
10 believes was based on his ethnicity. Incidents
11 of teasing, being spit on at school, that he
12 thought occurred because he was native. He also
13 testified about being called names by other
14 children and the bus driver, and described
15 discrimination he experienced as a teenager
16 playing sports. The accused testified that he
17 wanted to have his jury trial in a community with
18 primarily Aboriginal people, like Behchoko, Fort
19 Providence or Fort Simpson, because he feels
20 discriminated against sometimes in Yellowknife.
21 With respect to the law in this area, an
22 accused person has the right to an impartial and
23 broadly representative jury. The process of
24 assembling the jury panel guarantees
25 representativeness in the jury panel and the
26 random selection process ensures the
27 representativeness of the jury: R. v. Sherratt,
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1 [1991] 1 S.C.R. 509, at paragraph 35; Beaverho,
2 at paragraph 34.
3 Neither the Crown or defence have the right
4 to select a jury, or the power to shape a jury.
5 Jurors are selected at random, and randomness
6 ensures representativeness: R. v. Davey, 2012
7 S.C.C. 75, at paragraph 31.
8
9 As stated in Beaverho, at paragraph 35:
10
Neither can the venue be manipulated
11 on some expectation that a jury from
one community would be more
12 favourable than from another one.
The aim, as stated earlier, is a
13 fair trial with an impartial jury.
14
15 I agree with the comments of Justice Vertes
16 in Beaverho where he goes on to say, at
17 paragraphs 38-39:
18
[38] If, however, a trial is held
19 in a particular community with a
predominant racial composition, it
20 is inevitable that the jury panel
will reflect that race. But that is
21 a feature of demographics. There is
nothing in Canadian law that says
22 that an accused has the right to a
jury composed so as to deliberately
23 reflect the particular
characteristics of race, age, class,
24 sex and so on, of the accused.
25 [39] So it comes down to a question
of what is expedient to the ends of
26 justice. The accused is not
entitled as of right to a jury made
27 up of people of his own race. Even
if the jury trial is held in
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1 Behchoko there is no guarantee that
all the jurors will be of the same
2 race. There is no indication in
this case that there is any cultural
3 component other than the race of the
trial participants. There is no
4 suggestion that anything in the
subject-matter of the trial makes
5 similarity of cultural background as
between the trial participants and
6 the jurors significant. And, there
is no suggestion of racial bias or
7 prejudice on the part of potential
jurors should the trial be held in
8 Yellowknife.
9
10 As to the latter comment, in this case, there is
11 a suggestion that there is racial bias or
12 prejudice on the part of potential jurors in
13 Yellowknife.
14 There is some evidence that was also on the
15 application with respect to the proportion of
16 Aboriginal persons in various communities in the
17 Northwest Territories. In response to a
18 subpoena, Viktoria Bassarguina, a statistician
19 with the Northwest Territories Bureau of
20 Statistics, filed an affidavit and included
21 demographic information for several communities
22 in the Northwest Territories. The population
23 estimates for persons aged 18 years and older by
24 ethnicity as of July 1st, 2014, indicate that
25 Yellowknife has approximately 3,397 Aboriginal
26 persons which comprise 22.2 percent of the
27 population. These numbers do not include the
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1 community of Dettah, which is included in the
2 jury management system for Yellowknife. To
3 include the residents of Dettah would increase
4 the Aboriginal population of the Yellowknife area
5 by 165 persons and would result in a proportion
6 of Aboriginal persons being 23 percent. The
7 community of Behchoko has approximately 1,195
8 Aboriginal persons which comprise 92.7 percent of
9 the population. In Fort Providence there are 560
10 Aboriginal persons which comprise 88.6 percent of
11 the population. In Fort Simpson there are 676
12 Aboriginal persons which comprise 70.7 percent of
13 the population. All of these numbers are for
14 individuals over the age of 18.
15 In Mr. Blackduck's affidavit in support of
16 the application for production of third party
17 documents, some unofficial statistics were
18 included which had been compiled for a jury trial
19 education seminar in 2011. They were statistics
20 regarding the number of jury trials that had been
21 scheduled in 2010. They included the number of
22 jury trials scheduled, the number of stays of
23 proceedings, the number of re-elections, the
24 number of mistrials and information regarding
25 trials in specific communities. It stated:
26
Of the 18 trials that were
27 completed, 9 resulted in conviction
and 9 resulted in acquittals;
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1 - of 5 trials held in Yellowknife,
there were 4 convictions and 1
2 acquittal;
- of the 13 trials held in other
3 communities, there were 5
convictions and 8 acquittals.
4
5 There was also information regarding the
6 number of trials held in various communities,
7 including Behchoko and Fort Simpson.
8 As I stated earlier, I dismissed the
9 application for production of third party
10 documents because I was not satisfied that the
11 information would assist the accused in
12 establishing systemic or racial bias against
13 Aboriginal accused persons, and, partly, that is
14 because none of these statistics refer to
15 Aboriginal persons. Neither the jury management
16 system or the court registry tracks the ethnicity
17 of the jury panel or of an accused. So while
18 this information may provide statistics with
19 respect to the conviction rates in Yellowknife
20 compared to other communities, it does not assist
21 in determining whether there is racial or
22 systemic bias against Aboriginal accused persons.
23 There is also no evidence about how many of those
24 accused would have been Aboriginal persons. And,
25 as I stated, there are a whole host of factors,
26 aside from ethnicity, which might factor into why
27 a person is convicted or acquitted, not the least
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1 of which is the strength or weakness of the
2 Crown's case or the strength or weakness of
3 evidence presented by the defence.
4 In saying this, I do not doubt that there is
5 discrimination against Aboriginal persons which
6 occurs regularly and in various ways. I have
7 witnessed this myself growing up in Fort Good
8 Hope and Inuvik and living in Yellowknife. It is
9 not specific to one community. And I do not
10 doubt that Mr. Blackduck has experienced
11 discrimination as an Aboriginal person while
12 growing up in Yellowknife. Some people bully,
13 some people discriminate, but not every member of
14 the community does so. While I sympathize with
15 Mr. Blackduck's experiences, I do not see how
16 they establish a basis for concluding that a jury
17 in Yellowknife cannot be fair and impartial and
18 would not treat an Aboriginal person, or any
19 other person of an ethnicity not their own,
20 fairly.
21 The accused is not entitled as of right to a
22 jury made up of people of his own race. Even if
23 the jury trial is held in one of the suggested
24 communities, there is no guarantee that all
25 jurors will be of the same race as the accused.
26 From my review of the pre-trial conference
27 report, there is no indication that there is any
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1 cultural component other than the race of the
2 accused and witnesses in the trial. There is no
3 suggestion that the subject matter of the trial
4 makes similarity of the cultural background
5 between the accused and witnesses and jurors
6 significant. In saying this, I am cognizant that
7 in Beaverho, the court ultimately decided to hold
8 the trial in Behchoko and noted that "If holding
9 the trial in Behchoko results in further delay,
10 then that is the accused's choice."
11 As in Beaverho, ultimately there are good
12 reasons to hold the trial in Yellowknife, and
13 there are good reasons to hold the trial in
14 Behchoko or another community. But having
15 previously tried to empanel a jury in Behchoko, I
16 am not satisfied that it is clear that a second
17 attempt would be any more successful. And, if
18 this application had been brought in a more
19 timely fashion and in not the last few weeks
20 before the trial was scheduled to start, then
21 perhaps relocating the trial would have been a
22 more viable option. But given the delay that has
23 occurred in this matter so far, that this is the
24 third trial date, that the accused is already
25 claiming unreasonable delay, I am not satisfied
26 that it would be expedient to the ends of justice
27 to change the venue of this trial from
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1 Yellowknife to Behchoko, Fort Providence or Fort
2 Simpson. For these reasons, the application to
3 change the venue of the trial is dismissed.
4
5 Ruling on Application for Stay of Proceedings
6 (Unreasonable Delay)
7 Mr. Blackduck is also claiming that his
8 right to be tried within a reasonable time has
9 been infringed. The accused was charged with
10 sexual assault arising from an incident alleged
11 to have occurred on October 30th, 2011. The
12 accused was arrested by the police and released
13 on an undertaking on November 2nd, 2011. The
14 Information was also sworn on that date.
15 The accused had a first appearance in
16 Territorial Court on February 14th, 2012. On
17 that date the Crown elected to proceed by
18 indictment. Defence counsel asked that the
19 matter be adjourned without defence election as
20 he was awaiting some disclosure and the results
21 of DNA testing. The matter was adjourned to
22 March 27, 2012, for defence election. On March
23 27, 2012, the accused elected trial by judge and
24 jury and requested a preliminary inquiry. The
25 preliminary inquiry was scheduled for June 13,
26 2012. On that date the preliminary inquiry was
27 held and the accused was committed to stand
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1 trial. Following this, an Indictment was filed
2 on July 23rd, 2012. A pre-trial conference was
3 held on September 21st, 2012. Counsel agreed to
4 send in their availability for trial shortly
5 thereafter. Crown counsel provided their
6 availability for trial on November 6th, 2012, and
7 defence provided their availability on November
8 23rd, 2012.
9 On November 29, 2012, the matter was
10 scheduled for trial in Behchoko during the week
11 of November 4th, 2013. Prior to the trial, the
12 Crown brought an application for an adjournment
13 of the trial due to the complainant's infant son
14 having to go to Edmonton for a medical reason.
15 The application was heard on October 21st, 2013,
16 and the adjournment was granted. The Crown
17 provided availability for a second trial in court
18 on October 21st. A conflict subsequently arose
19 between counsel for Mr. Blackduck and a witness
20 in this case, which forced the accused to change
21 counsel. Mr. Martin, the accused's new counsel,
22 submitted his availability for trial on October
23 29th, 2013. On December 13, 2013, a second trial
24 was scheduled for the week of April 28th, 2014.
25 On April 28th, 2014, jury selection was held
26 in Behchoko. Despite resorting to the talesmen
27 procedure under section 642 of the Criminal Code,
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1 only nine jurors could be selected. As a full
2 jury could not be selected, a mistrial was
3 declared.
4 At the conclusion of the proceedings in
5 Behchoko on April 29th, 2014, defence counsel
6 advised that he expected to be bringing a section
7 11(b) application as a result of unreasonable
8 delay. Counsel were given until May 6th, 2014,
9 to provide availability for a third trial.
10 In discussing the venue of the trial, the
11 court emphasized that the trial should go ahead
12 as soon as possible. The court did not make any
13 direction with respect to the venue of the trial,
14 noting that the priority was to have the trial
15 where it was convenient and at a location where
16 there was the earliest availability to hold a
17 trial.
18 On May 5th, 2014, both Crown and defence
19 provided their availability. In defence
20 counsel's letter, he again stated his intention
21 to bring a section 11(b) application.
22 On May 21st, 2014, a third trial was
23 scheduled for the week of January 19th, 2015, in
24 Yellowknife.
25 Section 11(b) of the Charter guarantees an
26 accused person the right to be tried within a
27 reasonable time. The principles that apply in
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1 determining whether this right has been infringed
2 have been determined by the Supreme Court of
3 Canada in several cases. The Supreme Court of
4 Canada stated in R. v. Morin, [1992] 1 S.C.R.
5 771, at paragraphs 21-22, that the primary
6 purpose of section 11(b) is the protection of
7 individual rights of the accused, the right to
8 security of the person, the right to liberty, and
9 the right to a fair trial.
10 Security of the person is protected by
11 seeking to minimize the anxiety, concern and
12 stigma of those facing criminal charges. The
13 right to liberty is protected by seeking to
14 minimize restrictions on liberty which arise from
15 pre-trial detention and restrictive bail
16 conditions. The right to a fair trial is
17 protected by attempting to ensure that trials
18 occur while evidence is available and fresh.
19 A secondary interest is the interest of
20 society as a whole. Society has an interest in
21 trials being held within a reasonable time and
22 promotes the confidence of the public in the
23 justice system and ensures that those who are
24 charged with an offence are brought to trial and
25 dealt with according to law: Morin, paragraphs
26 24-25.
27 In Morin, the factors that must be
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1 considered in analyzing whether there has been
2 unreasonable delay were set out:
3 1. the length of the delay;
4 2. waiver of time periods;
5 3. the reasons for the delay, including
6 (a) inherent time requirements of the case,
7 (b) actions of the accused,
8 (c) actions of the Crown,
9 (d) limits on institutional resources, and
10 (e) other reasons for delay; and
11 4. prejudice to the accused.
12 The court emphasized in Morin that there is
13 no mathematical formula or specified time period
14 for when delay becomes unreasonable, but instead
15 the process is a judicial determination balancing
16 the interests protected by the Charter and other
17 factors which result in delay.
18 The approach under Morin is to ask whether
19 the length of the delay is sufficient to raise
20 the issue of reasonableness. If delay does raise
21 the issue of reasonableness, then it warrants an
22 inquiry into the reasons for the delay. The
23 total delay from the date that the charge was
24 laid stems from November 2nd, 2011, to the date
25 the third trial date is scheduled to begin —
26 January 19th, 2015. In total, that amounts to 38
27 months and 17 days.
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1 With respect to the issue of waiver of time
2 periods, the Crown has argued that Mr. Blackduck
3 has contributed to the delay from May 22nd, 2014
4 to January 9th, 2015, and that some 232 days
5 should either be considered waived or
6 attributable to the actions of the accused
7 because of his failure to bring the section 11(b)
8 application in a timely fashion. The Crown
9 argued, citing R. v. Sapara, 2001 ABCA 59, that
10 the failure to bring the application earlier
11 effectively precluded the court from considering
12 alternatives to a judicial stay, and that defence
13 counsel should not be able to sit by and watch
14 the clock tick while preparing to file a delay
15 application. In response, defence counsel argues
16 that the intent of the accused to bring a delay
17 application was indicated in court on April 29th,
18 2014, and by letter on May 5th, 2014, so the
19 delay application could not have been considered
20 a surprise. As well, defence counsel argues that
21 in setting the trial, the court was aware that
22 counsel sought the earliest possible trial date
23 and presumes that the court set the earliest
24 possible trial date.
25 When the trial date was set on May 21st,
26 2014, the amount of delay was determinable. It
27 would be 38 and a half months from the date the
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1 accused was charged until the third trial date.
2 So in that sense it makes little difference
3 whether the application was brought in May, June
4 or January. However, a judicial stay of
5 proceedings upon a finding of unreasonable delay
6 is not the only remedy open to the court. As
7 stated in Sapara, there is the possibility that
8 an earlier trial date could be ordered in
9 response to a finding of unreasonable delay.
10 This case is factually different from Sapara
11 because here, counsel quite clearly indicated on
12 two occasions to the court and the Crown that a
13 section 11(b) application was being considered;
14 whereas in Sapara, the court found that, despite
15 attending pre-trial conferences, defence counsel
16 made no mention of concerns regarding delay. In
17 that case the court found that there may have
18 been viable alternatives to a judicial stay had
19 the accused raised the issue of delay rather than
20 "sitting in the weeds" watching the clock tick.
21 I discussed earlier how trials are scheduled
22 in this jurisdiction and I do not intend to
23 repeat what I said, but we do not have set
24 assizes or courtrooms where counsel can consult a
25 trial coordinator and consider various trial
26 dates. While the court sits in Yellowknife on a
27 weekly basis, holding trials in other communities
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1 only occurs on an as-needed basis. The court's
2 resources are limited. Our trials are scheduled
3 by the scheduling judge based on the availability
4 of counsel (Crown and defence), the availability
5 of a judge, the availability of court staff, and
6 the availability of suitable facilities in the
7 community. In cases like this where concern with
8 delay has been noted, the court attempts to
9 provide the earliest trial date. I am not the
10 scheduling judge, but I think that it is a fair
11 assumption for defence counsel to make that they
12 received the earliest possible trial date, taking
13 into account the factors that I have just
14 referred to.
15 Whether an earlier trial date could have
16 been accommodated had defence counsel brought the
17 application earlier is speculative, and I am not
18 prepared to draw that conclusion, and that is not
19 to say that earlier trial dates are never
20 available in this jurisdiction in appropriate
21 circumstances. But in this case I am not
22 satisfied that there is any evidence that had the
23 accused brought the application earlier that an
24 earlier trial date could have been considered.
25 Therefore, I decline to find that the accused
26 explicitly or implicitly waived his right to be
27 tried within a reasonable time during this or any
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1 other time periods.
2 The Crown concedes that the overall delay in
3 this case is sufficient to raise the issue of
4 reasonableness and warrant an inquiry. I agree.
5 As stated in Morin, "some delay is inevitable"
6 and the criminal trial process itself has
7 inherent time requirements.
8
Some delay is inevitable. Courts
9 are not in session day and night.
Time will be taken up in processing
10 the charge, retention of counsel,
applications for bail and other
11 pre-trial procedures. Time is
required for counsel to prepare.
12 Over and above these inherent time
requirements of a case, time may be
13 consumed to accommodate the
prosecution or defence. Neither
14 side, however, can rely on their own
delay to support their respective
15 positions. When a case is ready for
trial a judge, courtroom or
16 essential court staff may not be
available and so the case cannot go
17 on. This latter type of delay is
referred to as institutional or
18 systemic delay.
(Morin, at paragraph 40)
19
20 Inherent time requirements encompass the
21 time it takes the parties to be ready for trial.
22 Essentially, it is the point when the parties are
23 ready for trial but the system cannot accommodate
24 them, as described in Morin. In cases like Mr.
25 Blackduck's, the inherent time requirements
26 include the time it takes to retain counsel,
27 receive disclosure, make elections, hold bail
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1 hearings and preliminary inquiries, attend
2 pre-trial conferences and submit availability to
3 the court. The complexity of the case is another
4 factor to consider in determining the inherent
5 time requirements of the case.
6 Mr. Blackduck is charged with a single count
7 of sexual assault and it is anticipated that the
8 trial will take four to five days. The trial is
9 not anticipated to be particularly complex, the
10 few witnesses expected to testify for the Crown.
11 A DNA expert is expected to testify so the matter
12 is not as simple as many sexual assault matters
13 which come before this court. The offence is
14 also indictable so a preliminary inquiry was
15 held, which adds to the inherent time
16 requirements.
17 The inherent time requirements of this case
18 do not comprise a significant portion of the
19 delay in this case. The preliminary inquiry was
20 completed on June 23rd, 2012, some seven and a
21 half months following the Information being
22 sworn. On November 29th, 2012, the first trial
23 date for Mr. Blackduck was scheduled; therefore,
24 a little over a year elapsed before the parties
25 were ready for trial. In this jurisdiction that
26 amount of time is somewhat longer than normal but
27 not unreasonable.
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1 However, within this time period there are
2 portions which are attributable to both Crown and
3 defence. Following the pre-trial conference on
4 September 21st, 2012, counsel were to provide
5 their availability for trial "shortly". However,
6 neither the Crown nor defence provided their
7 availability for trial for several weeks. The
8 Crown provided availability on November 6th,
9 2012, and defence on November 23rd, 2012.
10 Neither party has provided an explanation for why
11 it took so long to provide their availability for
12 trial. In the circumstances, the period between
13 September 22nd, 2012 and November 6th, 2012, are
14 equally attributable to Crown and defence. The
15 period from November 7th, 2012 to November 23rd,
16 2012, is attributable to the defence. Therefore,
17 the inherent time requirements to bring this
18 matter to trial of approximately 13 months must
19 be reduced by approximately two months as a
20 result of the Crown and defence failure to
21 provide their trial availability shortly after
22 the pre-trial conference.
23 There is a further delay which is
24 attributable to the Crown as a result of the
25 adjournment of the first trial. The period of
26 November 4th, 2013, when the trial was scheduled
27 to commence, and the next trial date of April
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1 28th, 2014, is attributable to the Crown.
2 Therefore, I find that of the 38 and a half
3 months it has taken this matter to be scheduled
4 for trial for the third time, that delay can be
5 considered as follows: inherent time
6 requirements — 11 months; actions of the accused
7 — a little over a month; actions of the Crown — a
8 little over six months. That leaves
9 approximately 20 months of institutional delay.
10 Systemic or institutional delay is the
11 period from when the parties are ready to proceed
12 to trial but the system cannot accommodate them.
13 The Supreme Court of Canada has acknowledged that
14 there are limited resources in the justice system
15 and that contributes to delay. However, there
16 are limits to what is acceptable as institutional
17 delay. At some point courts will not tolerate
18 delays based on inadequate resources: (Morin, at
19 paragraph 48)
20 The Supreme Court of Canada has issued
21 guidelines to assist courts in determining what
22 is acceptable for institutional delay. These
23 guidelines, however, are not to be applied in a
24 rigid manner or treated as a limitation period
25 and cannot be applied mechanically: (Morin, at
26 paragraph 48, and R. v. Latour, 2013 NWTSC 95, at
27 paragraph 72 to 74).
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1 In Morin, at paragraph 55, the Supreme Court
2 of Canada confirmed that a delay of six to eight
3 months between committal to stand trial and trial
4 was the appropriate range of what is reasonable,
5 and that in Territorial Court proceedings the
6 acceptable institutional delay was eight to ten
7 months. So an indictable matter which proceeds
8 through both the Territorial and Supreme Court
9 levels with a preliminary inquiry, would consider
10 a range of 14 to 18 months, based on Morin.
11 These time periods are suggestions and not fixed
12 deadlines. The Supreme Court of Canada
13 acknowledged in Morin that there will be regional
14 differences.
15
These periods will no doubt require
16 adjustment by trial courts in the
various regions of the country to
17 take into account local conditions
and they will need to be adjusted
18 from time to time to reflect
changing circumstances.
19 (Morin, at paragraph 57)
20
21 There are also local conditions to take into
22 account in the north in general, and in the
23 Northwest Territories in particular, which have
24 been discussed in other cases: R. v. Caesar,
25 2013 NWTSC 65, at paragraphs 21-24; Latour, at
26 paragraphs 76-81; and R. v. Oolamik, 2012 Nun.
27 C.J. 21.
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1 There are challenges in holding jury trials
2 in this jurisdiction that result in the period
3 between committal for trial and trial being
4 somewhat longer than what is contemplated under
5 Morin but that is also not unreasonable. The
6 challenges have been commented on by Justice
7 Charbonneau in a recent bail review decision
8 which also address the amount of time it takes to
9 proceed to trial.
10
The large majority of the circuits
11 that this court holds are held for
the purpose of holding criminal
12 trials, and a very large proportion
of those trials are jury trials.
13 Circuits in general, and circuits
where jury trials are held in
14 particular, require a lot of
planning and present logistical
15 constraints and challenges. In
scheduling these circuits the court
16 has to contend with geography, a
finite level of judicial resources,
17 a small criminal bar whose members
have a very heavy case load and many
18 circuit and court commitments. In
that context, it is simply not
19 realistic for people to expect to
have their jury trial within a
20 matter of months from charges being
laid. The court strives to give
21 priority in assigning dates to
matters where the accused are in
22 custody or to matters that are
getting more dated. Still, the
23 reality is that it takes time for
the various processes to take their
24 course. People do have the right to
choose to be tried by a court
25 composed of a judge and jury when
they are charged with an indictable
26 offence, but one of the consequences
of that choice is having to wait
27 longer before being able to have
their trial.
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1 (R. v. Ruben, 2013 NWTSC 23,
paragraph 30)
2 In this case the remaining delay from
3 November 29th, 2012 to November 4th, 2013, and
4 from April 28th, 2014 to January 19th, 2015,
5 approximately 20 months, is attributable to
6 institutional or systemic delay. Within that
7 delay, significantly, three trials were
8 scheduled. The first trial scheduled for
9 November 2013 was adjourned at the request of the
10 Crown. The second trial in April 2014 could not
11 be completed because a full jury could not be
12 selected. The third trial was scheduled for
13 January 2015. The attempts to hold multiple
14 trials within that time period distinguishes this
15 case from those like Morin and Godin where the
16 Supreme Court of Canada was considering delays of
17 14 and a half months and a 30 month delay between
18 the dates the charges were laid and the first
19 scheduled trial of the matter. I dare say that
20 if Mr. Blackduck's situation was that it was 38
21 and a half months between when the charge was
22 laid and the first trial date, my view of his
23 application would be different. But there has to
24 be some recognition that in this jurisdiction it
25 may take longer to have a trial, particularly in
26 the communities, and in some of the smaller
27 communities, including Behchoko, which is not
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1 necessarily small but where there have been
2 recent problems selecting a jury, that in those
3 communities there is a very real risk that a jury
4 cannot be selected due to the size of the
5 community and the relationships that potential
6 jurors have with the accused and/or witnesses.
7 That is one of the drawbacks to the court's
8 tradition of attempting to hold jury trials in
9 the community where the alleged offence took
10 place, and that is a risk the accused must assume
11 in requesting the trial happen in a smaller
12 community.
13 Overall, the delay attributable to
14 institutional resources and the Crown together —
15 some 26 months — the delay itself is not
16 unreasonable, taking into account the failure to
17 select a jury at the second trial date and the
18 logistical constraints which impact on
19 institutional delay in this jurisdiction.
20 In considering the prejudice to the accused,
21 the defence is alleging that there is prejudice,
22 both inherent prejudice and actual prejudice.
23 The Supreme Court of Canada has held that
24 prejudice can be inferred as a result of the
25 delay itself. The longer the delay the more
26 likely it is that prejudice can be inferred. The
27 accused can also adduce specific evidence of
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1 prejudice. The prejudice must arise from the
2 delay and not from the charge itself.
3 Mr. Blackduck filed an affidavit and
4 testified at the application. In his affidavit,
5 Mr. Blackduck claims that he has suffered
6 prejudice as a result of the delay and that it is
7 terrible to have a charge hanging over his head.
8 The charges and court dates are always in the
9 back of his mind. He goes on to say that the
10 charges have had an impact on his relationship
11 with his common-law spouse Heidi Adzin. He
12 claims that being unable to resolve the charges
13 in a timely way has placed undue strain on their
14 relationship. He has also incurred financial
15 costs in driving from Edmonton for the last trial
16 date. On that trip his vehicle broke down in
17 High Level and he had to have his father drive
18 down from Behchoko to pick him up. He also
19 claims being unable to drink as a result of his
20 bail conditions limited the social activities
21 that he has been able to attend.
22 In his testimony, Mr. Blackduck repeated
23 much of what he said in his affidavit and
24 provided further details of the impact that the
25 charges have had on him and the delay over a
26 period of time.
27 It is not unusual for a person facing a
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1 criminal charge to feel stress and anxiety and
2 for the charge to have an impact upon personal
3 relationships. As time passes and the charge
4 remains outstanding, it is understandable that
5 those effects would continue and would be
6 exacerbated. I agree that these effects are, in
7 part, attributable to the delay associated with
8 this case, but I do not agree that they are
9 solely attributable to the delay. I expect that
10 simply being charged with these offences would
11 have resulted in these effects, regardless of the
12 time it took to conclude the matter.
13 Mr. Blackduck has been out of custody for
14 virtually the entire time this matter has been
15 outstanding, with the exception of a brief period
16 between his arrest and release on an undertaking.
17 He was released on an undertaking which is by no
18 means strict. He is subject to four conditions:
19 to keep the peace and be of good behaviour; to
20 have no contact with the complainant; not to
21 attend the complainant's residence; and not to
22 consume or possess intoxicating substances unless
23 medically prescribed. There have been no
24 restrictions on Mr. Blackduck's movements. He
25 has not been required to remain in the Northwest
26 Territories. As a result, he has been free to
27 move to Edmonton since these charges arose. He
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1 has been able to work. And while he lost his job
2 at a diamond mine it was not as a result of the
3 charge. He has been able to find work readily in
4 Alberta, he admitted, albeit not always at the
5 wage he would like.
6 As a result of moving to Edmonton, he has
7 incurred costs in travelling back for the trial
8 and for other court dates. These costs can be
9 considered part of the cost of moving outside the
10 jurisdiction while a criminal charge is
11 outstanding; however, it must also be kept in
12 mind that because of the amount of time this case
13 has required, the costs are more than would be
14 expected and can result in financial hardship.
15 There is no evidence that Mr. Blackduck's ability
16 to make full answer and defence has been
17 prejudiced by the passage of time.
18 Overall, I am prepared to conclude that Mr.
19 Blackduck has suffered some prejudice. Prejudice
20 can be inferred from the passage of time, and Mr.
21 Blackduck has demonstrated that he has incurred
22 some financial costs and some stress which is, in
23 part, attributable to the delay in this case.
24 The determination of whether the delay is
25 unreasonable depends on a consideration of all
26 the factors I have referred to, so the reasons
27 for delay and the prejudice suffered by the
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1 accused.
2 As mentioned, the Crown and defence are
3 responsible for approximately two months of the
4 delay following the preliminary inquiry. The
5 Crown is also responsible for the delays
6 associated with the adjournment for the first
7 trial, a little over five months, and the
8 remainder of the delay is attributable to either
9 the inherent time requirements of the case of
10 approximately 11 months, and institutional delay
11 of approximately 20 months. I have considered
12 recent cases from this jurisdiction and Nunavut
13 which counsel provided: R. v. Latour; the second
14 R. v. Latour case, 2013 NWTSC 04; R. v. Oolamik;
15 R. v. Caesar; and R. v. Unka, 2005 NWTSC 15.
16 In my view, the delay that has occurred in
17 this case is within what might be reasonably
18 expected, taking into account the particular
19 circumstances that exist in the Northwest
20 Territories and the history of this matter.
21 While Mr. Blackduck has demonstrated some
22 prejudice as a result of the delay, I am not
23 satisfied that the prejudice is severe enough to
24 conclude that his rights under section 11(b) of
25 the Charter have been infringed and that a
26 judicial stay of proceedings is warranted. So
27 for these reasons, the application is dismissed.
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1 ..............................
2
3 Certified to be a true and
accurate transcript pursuant
4 to Rule 723 and 724 of the
Supreme Court Rules of Court.
5
6
______________________________
7 Annette Wright, RPR
Court Reporter
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9
10
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Official Court Reporters
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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.