Decision Content
R v Koe, 2020 NWTSC 37 S-1-CR-2020-000070
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
-v-
DARREN KOE
________________________________________________________
Transcript of the Bail Review held before the Honourable Chief Justice L.A. Charbonneau, sitting in Yellowknife, in the Northwest Territories, on the 1st day of September, 2020.
________________________________________________________
APPEARANCES:
B. Wun: Counsel for the Crown
P. Falvo: Counsel for the Defence
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Charge under s. 267 (b) of the Criminal Code
There is a ban on the publication, broadcast or transmission of the evidence taken, the information given or the representations made and the reasons for decision until such time as the trial has concluded pursuant to s. 517 of the Criminal Code.
I N D E X
PAGE
SUBMISSIONS BY P. FALVO 4
SUBMISSIONS BY B. WUN 12
REPLY BY P. FALVO 19
EXHIBITS:
NO. DEFINITION PAGE
A UPDATED CRIMINAL RECORD OF D. KOE 3
RULINGS, REASONS
Reasons for decision 20
Order re denial of bail 26
Order re transcript of proceedings 26
(VIDEOCONFERENCE COMMENCES)
THE CLERK: All rise. These sittings of the Supreme Court of the Northwest Territories are now in session. The Honourable Justice Charbonneau presiding. Please be seated.
THE COURT: Good afternoon, counsel. Good afternoon, Mr. Koe. Mr. Falvo, I see that two transcripts have now been filed, One of what looks like it was an interim appearance on the 27th of April, 2020, before Justice of the Peace Guigon and then the transcript of the substantive show cause hearing that took place before Justice of the Peace Wharton.
So I have reviewed those two transcripts. I have also reviewed Mr. Koe’s affidavit. So just before we start, I thought I would ask just a few questions, a few housekeeping questions.
First of all, is the Crown essentially relying on the same allegations as the ones that were put before Justice of the Peace Wharton? Because if that is the case, they are on the record and I do not really see a need for them to be stated again unless you want to.
B. WUN: It’s the same allegations.
THE COURT: All right. And I will make sure that I have everything right in terms of the pending charges because on this Supreme Court file the only Information I have is the -- the only charge that is before me is the Territorial Court file 2019-1261. So that is the one that is the assault causing bodily harm charge?
B. WUN: Yes.
THE COURT: So the other Informations, Territorial Court Informations, are not on the Supreme Court file, but the various breaches and other incidents are referred to in the show cause hearing transcript. So I think I have the complete picture, but I just wanted you to be aware that that is the only file that is before me today.
B. WUN: Yes, Your Honour. And my friend filed the -- Mr. Koe’s affidavit. In that affidavit Exhibit A is the criminal record.
THE COURT: Yes.
B. WUN: That criminal record is slightly outdated. It doesn't include the breaches that are referred to in the transcript and in his affidavit. So I do have the updated criminal record. I would like to file that now.
THE COURT: You agree that that is a full record, Mr. Falvo?
P. FALVO: Yes. Mr. Wun pointed out the error in the affidavit because it was the record that had been disclosed, but it wasn't updated to subsequent events.
THE COURT: Yes.
P. FALVO: So he has shown me the document that he’s about to tender, and it’s agreed that there was a sentencing on June 10 before Chief Judge Gorin. There were 75 days of sentence at that time; as well an outstanding conditional sentence was deemed to be served and was disposed of on that date.
THE COURT: So June 10th, you say 75 days custody and then the conditional sentence which had previously been suspended was deemed served?
B. WUN: Yes.
THE COURT: So that is no longer pending?
P. FALVO: Yes.
THE COURT: Okay. So let’s mark that, then, as Exhibit A on the bail review, which will be the complete criminal record.
EXHIBIT A: UPDATED CRIMINAL RECORD OF D. KOE
THE COURT: Thank you for clarifying that. The second or third question I wanted to ask is whether the Crown -- just for the record, the Crown is still opposing release?
B. WUN: Yes.
THE COURT: And is the Crown still opposing release only on the secondary ground?
B. WUN: On the secondary ground.
THE COURT: All right. My last question for you, Mr. Wun, is was it your intention today to seek to cross-examine Mr. Koe on his affidavit, or are you content to just rely on submissions?
B. WUN: I’m content to simply rely on submissions, Your Honour.
THE COURT: All right. Is there any other evidence you wish to adduce on the bail hearing?
B. WUN: No.
THE COURT: Mr. Falvo, aside from your client’s affidavit and now this updated criminal record, is there any other evidence that you want to bring forward at the bail review?
P. FALVO: Evidence, no, Your Honour.
THE COURT: All right. So this is a reverse onus, as I understand. It was a reverse onus initially. We are on a 525 review. I am not sure the onus matters that much, in any event, and I say that because even on a reverse onus I do find that ultimately the issue is whether detention is necessary, and it might affect who speaks first.
I do not have a particular -- I do not think much rides on that, but had you discussed who would go first on the submissions? I am willing to go either way. I would turn to you, Mr. Falvo, unless you have agreed otherwise, but …
P. FALVO: I mean -- that’s fine --
THE COURT: You get the right of reply if you go first, so I suppose that …
P. FALVO: Thank you.
SUBMISSIONS BY. P. FALVO:
The Court has the recording of the bail hearing as well as the affidavit, and in one sense little has changed in terms of release plan. Mr. Koe is, as the affidavit says, proposing to go and live in Inuvik where there is a geographical separation from the complainant.
What I would point out to the Court is the circumstances that he found himself in were very difficult for him. It was his first time away from home. He has very close family ties. There are some cognitive challenges, and it is difficult for him where it’s not a voluntary absence from home.
He was on conditions to live in Inuvik and not the easiest situation because he was living there with an ex-partner under the same roof. So that became challenging for him at times and as stated in the affidavit, he simply found himself very homesick.
The delay was lengthened by the public health emergency, and so a matter that might have been resolved by now instead stretched out, and so by the end of April he’d been for some months away from his community, away from his family and supports, and he was finding that very difficult. And that led to the breaches that he ultimately took responsibility for. But I’m making these submissions just on the moral culpability for the situation that he was in.
There are no fresh allegations with respect to the complainant of the original allegations, which is what is left outstanding. He has the trial that is upcoming. It is scheduled for later this month in Fort McPherson. In theory that could go ahead on September 23rd and he could have a resolution one way or the other, so it may not be a big gap between today and the ultimate resolution, but that’s if it goes ahead.
I don’t know -- obviously I can’t say if it will go ahead on September 23rd. It -- there’s nothing to indicate to me that it won’t, but courts have been backed up because of the public health emergency. I understand there’s a reluctant complainant in this matter. And if for some reason the matter didn't go ahead on September 23rd, it could be a much longer wait for Mr. Koe.
So he is seeking release and reaffirms that he will abide by the conditions of release and reside in Inuvik geographically separated from the complainant. Thank you.
THE COURT: Mr. Falvo, I just want to make sure I have details of the release plan, that I understand the release plan correctly. In his affidavit, it says at paragraph 10 “he proposes to reside in Inuvik with friends.” So that gives an address; it does not really name the friends.
You say this is the same plan as the one that was proposed to Justice of the Peace Wharton effectively?
P. FALVO: Essentially.
THE COURT: And is there -- I read the transcript after it came to my attention yesterday, but were there any more details than that in the description of the release plan before Justice of the Peace Wharton? I mean, there were the series of questions of what he was prepared to -- conditions he was prepared to comply with. But I just …
What I am getting at is, I guess, were there specific individuals referred to as being these people he would live with? Because, I mean, I read about the earlier situation, which was the common-law, and maybe I misunderstood, but I thought the suggestion was that that is where he would go back and stay. And so if that is the case, the release plan proposed today is not the same as the one that was before Justice of the Peace Wharton.
So I just want to make sure I am clear on that. I thought that when he was before JP Wharton the suggestion was that he return to the same conditions that he had been on before, which is the situation you have described, the ex-common-law, the spouse.
P. FALVO: Yes. And that is what is being proposed here today.
THE COURT: All right. So it is the same housing?
P. FALVO: Yes. Same housing, yes.
THE COURT: Oh, okay. Because it says “friends.” Okay. So it is the same house.
P. FALVO: Yes.
THE COURT: I understand. And the circumstances you have described as somewhat difficult or challenging for him.
P. FALVO: Yes. And I said that only in referring to his moral culpability for the subsequent offences against the administration of justice. But he was finding it a challenge, and so I suppose it is ironic to then ask to go back to it, but he doesn't have other options.
THE COURT: I see. Now, my other question that I wanted to ask you is, so since the 29th of April, since he was ordered detained, is it the case that when he was sentenced in June, the time he had already spent in custody plus whatever was left of the conditional sentence, that all went into the sentence that was imposed on the 10th of June such that the remand, the pre-trial custody attributable to this remaining charge, is the pre-trial custody since June the 10th? Am I understanding that correctly?
P. FALVO: Yes. Subject to Mr. Wun correcting me, it was a time-served situation on June the 10th.
THE COURT: Well, it says “45 days consecutive, 30 days concurrent.” But what I mean is was there -- because often on these CPIC printouts we see the bracket, “(credit given for x-number of days)”. And in fact, it is the law that it should be reflected on the Information, and I do not have those Informations here before me.
But I guess what I am getting at is I imagine if he was being sentenced, there must have been a request or there must have been consideration of the time between April 29th and June the 10th. That must have been taken into account in arriving at that sentence.
P. FALVO: Yes. That was my recollection, that it was used up.
THE COURT: Okay.
P. FALVO: ‘Til the June 10th point and so that he has been earning pre-trial custody since.
THE COURT: So since June 10th, the only pre-trial custody between -- since his original detention and between then and today is since June the 10th.
P. FALVO: Yes.
B. WUN: I’m sorry, Your Honour. Perhaps I can jump in here.
THE COURT: Sure.
B. WUN: About the remand time. On June 10th the Territorial Court determined that the CSO that was outstanding, the time was deemed “time served” using a portion of the remand time accumulated since that point. And on that day an additional 75 days of custody was imposed for the various breaches that Your Honour sees on the criminal record.
THE COURT: But how do you get to 75 days? I see 45 days consecutive, 30 days concurrent.
B. WUN: Yes. So --
THE COURT: So that’s –
B. WUN: On the last page on the PROS.
THE COURT: Yes.
B. WUN: There are additional offences.
THE COURT: Oh, and the disposition -- okay. I always get confused because the disposition shows after. So on that I see 30 days concurrent, so we are still concurrent. And I see 30 days custody in bigger font. It does not say “consecutive.” You are telling me that was consecutive?
B. WUN: That’s consecutive. And I know that because I have the warrant of committal.
THE COURT: Okay. So then, that means that 75 days -- so he is actually serving; he has been serving since June the 10th that sentence?
B. WUN: June -- yes. So on June the 10th it was a total sentence of 75 days custody less 1.5 days of credit because 1.5 days was what was remaining after his CSO was deemed served.
THE COURT: So 73 and a half days starting in June.
B. WUN: Starting June 10th. So I think by my calculation he should have been out end of July. So he would have been on remand for this charge end of July beginning of August.
THE COURT: All right. That is helpful. It is just that there is a lot of files. So thank you for chiming in. Is there anything else you wanted to say, Mr. Falvo?
P. FALVO: No, and I’m sorry if my understanding of the sentence was incorrect.
THE COURT: That is all right. I mean, there were a lot of different charges and a lot of different things happening. So that is why I am asking the question; I want to make sure I had it straight.
All right. Mr. Wun, submissions?
B. WUN: Your Honour, I just want to make sure the Court is clear. With respect to the allegations, I think at the bail hearing my colleague said it was suspected that the complainant Ms. Koe had a fractured jaw or they thought maybe she did. So since that time, she does.
THE COURT: I think that I saw that.
B. WUN: Yes, it’s --
THE COURT: At page 7 it says at lines 14, 15 “ultimately it was determined” –
B. WUN: Yes.
THE COURT: -- “that her jaw was fractured.”
B. WUN: Perfect. Yes.
THE COURT: So that is what I thought the allegation was.
B. WUN: Yes. Yes. Those are the allegations. Perfect. Okay.
SUBMISSIONS BY B. WUN:
Your Honour, I think perhaps -- this was canvassed during the transcript, but I think it might be helpful to actually set out what the procedural history is on the bail. That’s how I’d like to begin my submissions.
And this is from page 25 to 27 of the transcript. Mr. Koe was initially released on a recognizance as it then existed on August 1, 2019. It is now called a “release order,” but at that time he was sent to live in Yellowknife. And then nothing happened for awhile until April 6th of 2020, when he found in breach of that recognizance by being in Fort McPherson, and that was one of the conditions, that he not be in Fort McPherson.
So at that point he was released. So he was arrested on the same day and then released on essentially the same conditions, not to be in Fort McPherson. And then on the 24th there is another breach for the same condition not to be in Fort McPherson. And then he was arrested on the same day and then released on the 25th on a release order.
So now we’re at April 25, 2020. And then this is the part where it might be a little bit confusing. There is another breach and the flight from police on the same day. That’s because the release happened some time, I believe, in the morning or early afternoon, and then the offence of breach and -- breach of a curfew and flight from police happened at night or leading into April 26. So that’s how that happened.
And then he was arrested, of course, in -- immediately in the early morning hours of the 26th and then had his bail hearing before JP Wharton on the 29th where he was detained on secondary ground.
So that’s the history. The -- Mr. Koe’s affidavit gives some explanation of what happened there. The explanation he gave is that he felt homesick, that was the first time he was away from home and that’s echoed in my friend’s submissions as well. But I think that explanation needs to be weighed against the procedural history here. Perhaps that might make sense to explain -- not to excuse, but to explain what happened on April 6th.
But he was released on the same day, likely because he -- there had been no breach for a long time. So he was released on the same day with the same conditions, but then he breached shortly after the same condition not to be in Fort McPherson. And then he was released again on the 25th.
So when we weigh that history together with that explanation it starts to not make sense. The warning was April 6th when he was arrested in breach and then obviously, he would have been told, you’re in breach; don’t do this; you need to leave. And then -- but then he was released. So he was given a chance. So at that point it should have been clear to Mr. Koe that even though he might feel homesick, it’s not acceptable to be in breach of his conditions, and that was the warning, that should have triggered something to say, you need to obey these orders.
But unfortunately, what we see afterwards is a continued pattern of breach, and I think it’s helpful to look at JP Wharton’s decision found on page 29 to 30. The rationale that His Worship gave is very simple. His Worship looked at the criminal record for violence and particularly for many offences against the administration of justice, including at the time what was an allegation of new breaches but also flight from police, which His Worship characterized as an offence against the administration of justice. It showed a lack of respect for authority, I believe were JP Wharton’s words.
And so the Court’s conclusion at that time was that this is not -- the Court can’t have confidence in Mr. Koe to abide by conditions, and that finding was based on that criminal record and the allegations at the time.
On the 525 review it’s not a de novo hearing. The question, as Your Honour rightly pointed out, is whether detention continues to be justified. And in guiding the Court’s analysis, there are a couple things to look at. First is whether there has been any unreasonable delay.
Now, Mr. Koe’s affidavit talks about how the proceedings have been delayed because of the pandemic. That is partially true. But I think we need to actually look at the various trial dates that were set on this matter. Now, I’m not sure what the Court actually has on one of these 525 reviews.
THE COURT: Well, as I say, I have the Territorial Court Information, so there is a long series of endorsements but even at the bail hearing, there was reference and I think it was the Crown that set out the procedural history of one adjournment because of the late disclosure of an alibi defence and the second adjournment because of, through no fault of Mr. Koe, the new defence lawyer –
B. WUN: Yes.
THE COURT: -- was not prepared to proceed. But -- so I am aware that there were two times where the Crown was ready to go with the witness there and matters were adjourned.
B. WUN: Yes.
THE COURT: Not because of the Crown.
B. WUN: Yes. So there were prior trial dates that had nothing to do with the pandemic. Those were adjourned for the reasons that Your Honour indicated and, in my friend’s submissions, my friend talked about the possibility of a reluctant complainant, but I would note that on the first two trial dates, September 11, 2019, and January 22, 2020 -- this is contained in the transcript -- the Crown witnesses were there and ready to go. The March 19 trial date was adjourned because of the pandemic, and then upcoming is the fourth trial date on September 23rd.
So I don’t think anyone can say whether the complainant is absolutely going to show up or not going to show up; we don’t know that. We can only look at past history to see her compliance with the subpoenas to make an inference in the circumstances. And the past history shows that she does show up in response to a subpoena when the trial date is set.
Another factor to look at, Your Honour, is whether there is any material change in circumstances and, in the Crown’s view, there is no material change in circumstances. The only thing that has changed actually weighs in the Crown’s favour. At the time of the bail hearing on April 29, JP Wharton, His Worship, was dealing with the substantive allegation and then allegations of breach. And of course, Mr. Koe at the time was presumed innocent of those charges.
But since that time what’s happened is Mr. Koe has pled guilty to those breaches, so he’s no longer presumed innocent of those. So in terms of the risk assessment under the secondary ground, and to understand JP Wharton’s finding of whether or not Mr. Koe would comply with court orders and the risk he presents under the secondary ground, that risk has only intensified. Because those allegations are now convictions.
In terms of the release plan that has been proposed, it’s the same -- very much the same plan. And so if the rationale behind why Mr. Koe breached in the first place was because he was homesick, it was the first time he was away from home, nothing really has changed. There’s nothing in the plan that would increase the confidence of this Court that he is now prepared to comply with these conditions.
And of course, that has to be weighed against his criminal record, which as the bail court observed and the Crown also observes, it’s lengthy with many entries for breaches, offences against the administration of justice and for violent offences similar to what Mr. Koe is being charged with now.
One of the factors in Myers that the Court talks about is the proportionality of detention. And Your Honour asked questions I think that’s related to this point. It’s -- the question is whether the certain loss of Mr. Koe’s liberty is proportionate when weighed against the factors justifying his detention.
Now, because of what happened on June 10th, his remand time has since been depleted to satisfy other sentences or to satisfy his CSO breach that was outstanding at the time and is no longer pending. So he’s only been accumulating remand time since the beginning of August, possibly the end of July, around that time. So he’s actually been in remand for a relatively short period of time for these charges.
Looking at what the allegations are in their totality, looking at his criminal record, Mr. Koe is not in a situation where he would be in a time-served position, and so there might be a risk of inducing a guilty plea. That’s something that Myers discusses. That’s not the situation that Mr. Koe faces now.
And in Myers, Your Honour, when the Court discusses the nature of a 525 review there is discussion that a review is not a de novo hearing, so the reviewing court should have some deference for the findings of fact of the initial first level decision major. And in this case there’s no change here; there -- nothing has happened that might cause the Court to reconsider the weighing of the factors that the first level decision-maker has made. There’s no unreasonable delay; there’s no change in circumstances; there’s no change in the nature of the case. And if anything, it’s -- there’s more breaches now appearing on Mr. Koe’s record.
So for all of those reasons, Your Honour, I would suggest that detention continues to be justified, as it was justified on April 29th and continues to be justified today on September 1st. His trial is upcoming September 23rd in Fort McPherson. It’s three weeks away. There’s no unreasonable delay. This is not a situation where he’s languishing in custody without hope of a trial date. That’s not the situation here.
So subject to the Court’s questions, that’s what the Crown’s position is.
THE COURT: I just want to look at something here. Just because it is important sometimes -- in some case it would make a difference. Because you are talking about detention being justified, and I am just looking … Yes, so section 515, paragraph 10, paragraph B, which deals with the secondary ground talks about the detention being “necessary.”
So, I mean, “necessary” is -- to my mind, it is stronger than “justified.” So I just want to be clear on that. You are not -- we agree on that.
B. WUN: Oh, yes. Absolutely. Yes, yes, yes.
THE COURT: Yes? Okay. Because you have used the -- sometimes the test is justified and “justified” is a different thing than “necessary,” I think, so I do not have any more questions. Mr. Falvo, is there anything else you want to say in reply or otherwise?
REPLY BY. P. FALVO:
Your Honour, the prosecutor is correct; it changed since the previous appearance that allegations have now become convictions. But it could also be argued that that lessens the risk in the sense that he’s no longer a flight risk on those allegations.
But in any event, the prosecutor is academically correct on many points. It’s just a difficult personal situation that Mr. Koe was in; for somebody with his aptitudes and experiences and background, it’s being asked to be outside of Fort McPherson was perhaps like being asked to be outside the planet earth; it was just very difficult for him on a personal level, and that’s what he was struggling with. Thank you.
THE COURT: Thank you. Well, Mr. Koe is before this Court by operation of section 525 of the Criminal Code, which mandates that detention be reviewed within certain time frames. And the legal framework that applies to a hearing under section 525 of the Criminal Code is the legal framework that was laid out in R. v. Myers by the Supreme Court of Canada.
And without quoting at length from it, I think there were some important aspects of the case that have to be borne in mind, including some that were mentioned during the submissions.
One of the things that has to be considered, and it is the reason for section 525 existing, is delay in the proceedings. The purpose of this provision is to ensure that people do not linger in custody for inappropriate periods of time while awaiting trial. So the impact of the passage of time and delay is a consideration in a hearing like this. And this is talked about in Myers at paragraphs 50 and following.
But the Supreme Court also warns reviewing judges to be careful about two things: one, not to simply rubberstamp what happened at the first hearing but also show some deference and some consideration to the decision made at the earlier hearing, especially if nothing has changed.
It seems fairly clear from the decision of Justice of the Peace Wharton that -- and this is how I read his decision; he was receptive to the position that is being advanced today, which is that it was difficult for Mr. Koe to be away from Fort McPherson and all these subsequent charges about not complying with the condition to stay away from Fort McPherson were not in and of themselves a reason to detain him.
But Justice of the Peace Wharton said in his decision that he was concerned about the extensive criminal record for violence that Mr. Koe has, which is of concern on the secondary ground when the present allegations are quite serious. He is alleged to have punched his niece twice and broken her jaw. That is not a minor assault.
In his decision Justice of the Peace Wharton said:
The crux of the previous release that you must leave the said community within 24 hours of your court appearance has nothing to do with the charge of failing to stop for a vehicle that is being pursued by a police officer. To me, that shows a lack of respect to the administration of justice. If that charge was not there, this would be a harder decision for me, and I would lean towards release. But that charge with the charges I have in front of me and with the criminal record convictions draws me to the conclusion that I found the accused failed to show cause.
And I am in a similar situation. First, I think it needs to be said -- and Mr. Falvo is not arguing otherwise -- there is no error, misapprehension of evidence or error in law in Justice of the Peace Wharton’s decision. So there is nothing really there for me to say, well, this is something that was overemphasized or not treated properly.
There is also no change in circumstances as far as the release plan. Whatever difficulties that presented in the past would still be present.
There has been passage of time but most of the time Mr. Koe spent in custody since April 2020 has now been taken into account in sentencing and time served on other charges. So the only real change in circumstances is that various things that were merely allegations at the time of the show cause hearing are now convictions, including the one charge that caused Justice of the Peace Wharton the most concern.
I understand that there is never certainty as to when a trial will proceed, but this one is scheduled to proceed later this month. If it does proceed and if there were to be a conviction, I do not think the proportionality concern that is discussed in Myers would arise. Obviously, if the trial proceeds and Mr. Koe is found not guilty, then it is a fact that he will have spent time in custody for something that he ultimately is not convicted of. That is always unfortunate, but it is always a possibility when someone is detained pending trial.
If the trial does not proceed for whatever reason and is delayed further, then it would be open to him to bring a review application based on that as a change in circumstances.
I do not think I can speculate about the Crown’s case at this point. The facts are simply that this has been set for trial three times. The first time it did not proceed because of a late disclosure of an alibi. The second time it did not proceed because defence counsel was not prepared to proceed. And the third time the trial was cancelled because of the COVID pandemic, which is an exceptional situation that has had to be contended with not just here but all over the world.
In summary for now, I do not think it can be said that the delay is unreasonable. I do not think it can be said that the period of time that Mr. Koe will have spent on remand is disproportionate to the sentence he could receive if convicted. There is no change in his proposed release plan.
And so really, looking at all these factors together, I simply do not think there is a basis to exercise my discretion under section 525 to release him.
That does not mean, of course, that Mr. Koe will be without recourse if his trial does not proceed. He will be at liberty to apply to this Court for review, pursuant to section 520 and make the case then that the passage of time is becoming a larger concern.
Mr. Koe, despite his extensive criminal record, was released initially on this charge. That is important to remember. He has a very lengthy criminal record and yet he was released on a further allegation of crime of violence on certain conditions. And he was released again and again despite several breaches.
So his constitutional right to reasonable bail and the presumption of innocence on this charge were honoured and taken into account very seriously, evidently, because he was granted release several times.
There comes a point where it becomes difficult to be satisfied that the public can be protected on the terms of release if he continually breaches them. And I must say I agree with Justice of the Peace Wharton that if the reason he kept breaching was his difficulty staying away from Fort McPherson, that does not explain his behaviour trying to evade police the last time he was found in breach. And it suggests that there is an issue here with respect for court orders and the administration of justice in general.
The reason why that is relevant in this context is that when someone is released on their promise to the Court, it has to be based on some level of confidence that they will do what they promised.
For those reasons I am denying the application.
In accordance with our usual procedure, I will order a transcript of my reasons. I will have to edit it because I gave this decision immediately after submissions, but it will be filed and it will be available if and when another judge is asked to reconsider this if the trial does not actually proceed.
So I would ask that this transcript be ordered on an expedited basis, Mr. Clerk, because if, as I say, the trial does not proceed, it may well be that Mr. Koe has a stronger case depending on when it is rescheduled for and depending on the reasons why it does not proceed. But I would trust that the Crown would do its utmost to ensure that it proceeds. Is it peremptory on the Crown?
B. WUN: No.
THE COURT: It is not? Well, it is not for me to decide, but I think this is one that really should proceed next time barring very exceptional circumstances. It is not for me to issue a remand warrant on a Territorial Court file so presumably that has already been looked after, but you might want to look into that Mr. Wun.
B. WUN: Yes.
THE COURT: Thank you for your submissions, counsel. We will close court.
THE CLERK: All rise. I declare the Supreme Court closed.
(VIDEOCONFERENCE CONCLUDES)
(PROCEEDINGS ADJOURNED TO SEPTEMBER 23, 2020, YELLOWKNIFE)
CERTIFICATE OF TRANSCRIPT
Neesons, the undersigned, hereby certify that the foregoing pages are a complete and accurate transcript of the proceedings transcribed from the audio recording to the best of our skill and ability. Judicial amendments have been applied to this transcript.
Dated at the City of Toronto, in the Province of Ontario, this 8th day of September, 2020.
____________________________________
Kim Neeson
Principal