Decision Content
R v Panaktalok, 2021 NWTSC 3 S-1-CR-2019-000104
IN THE SUPREME COURT OF THE NORTHWEST TERRITORIES
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
- and -
BARION DWAYNE PANAKTALOK
Respondent
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Transcript of the Reasons for Decision by the Honourable Justice S.H. Smallwood, sitting in Yellowknife, in the Northwest Territories, delivered orally on the 11th day of January, 2021.
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APPEARANCES:
A. Godfrey: Counsel for the Crown
R. Clements: Counsel for the Defence,
appearing via teleconference
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Charge under s. 266 of the Criminal Code
I N D E X
PAGE
RULINGS, REASONS
Reasons for Decision 1
THE COURT: This is a Crown appeal from a decision of the Territorial Court in Tuktoyaktuk to acquit the accused, the respondent, Mr. Panaktalok. The respondent, Barion Dwayne Panaktalok, was charged with one count of assault, contrary to section 266 of the Criminal Code. The assault was alleged to have been on his domestic partner and have occurred on or about February 28th, 2019, in Tuktoyaktuk, Northwest Territories.
Mr. Panaktalok entered a not guilty plea and the matter was subsequently set for trial on August 28th, 2019. On August 28th, 2019, the Crown sought an adjournment of the trial on the basis that a witness, a police officer, was not available. The defence did not consent to the adjournment and raised a concern about laches.
The trial judge denied the adjournment application. As a result, the Crown was unable to lead evidence and the respondent was acquitted. The Crown appeals the decision to deny the adjournment application, arguing that the trial judge provided insufficient reasons for the decision and that the finding of laches was made in error.
Dealing first with the sufficiency of reasons, the decision of the Supreme Court of Canada in R. v. Sheppard 2002 SCC 25 and R. v. R.E.M. 2008 SCC 51 set out principles to consider in assessing the sufficiency of a trial judge's reasons.
Reasons for judgment are integral to a trial. They justify and explain a result. They inform the parties and the public of the reasons for the decision and permit meaningful appellate review. Sheppard at paragraph 24.
The reasons must be sufficient to explain why the accused was convicted or acquitted, providing public accountability and permitting effective appellate review. R.E.M. at paragraph 15.
For the purposes of an appeal, if the reasons do not prevent meaningful appellate review, then appellate intervention is not warranted. An appellate court cannot intervene simply because it thinks that the trial judge did a poor job of expressing itself. Sheppard at paragraphs 25-26.
Reasons are particularly important where the trial court is called upon to address unsettled law or to resolve confusing or contradictory evidence on a key issue, unless the basis for the trial judge's conclusion is apparent from the record. Sheppard at paragraph 55.
The trial judge's duty to provide reasons is satisfied where the decision is reasonably intelligible to the parties and provides a basis for meaningful appellate review. Sheppard at paragraph 55.
In considering the sufficiency of reasons, an appellate court should read them as a whole in the context of the evidence, the arguments and the trial with an appreciation of the purposes or functions for which they are delivered. The reasons are sufficient if they, read in context, show why the judge decided as he did. R.E.M. at paragraphs 16-17.
While judges are presumed to know the law and deal competently with issues of fact, the presumption is of limited relevance. Where the reasons are deficient but an appeal court is able to explain the result on its own reasons, that will be sufficient. Sheppard at paragraph 55.
It is also important to keep in mind the time constraints and the general business of criminal courts in assessing the trial judge's reasons. Perfection is not required. Sheppard at paragraph 55.
On the trial date, the Crown sought an adjournment of the trial as a material witness, a police officer, was not available. The Crown advised the Court that the officer had transferred to Alberta on July 8th, 2019. The officer was unable to attend court and video testimony was not available in Tuktoyaktuk.
The officer learned that he was unavailable for court on July 22nd, 2019, and advised the Crown on August 2nd, 2019, that he was unavailable for another trial which was scheduled for the same circuit.
The Crown advised that they would be prepared to proceed with Mr. Panaktalok's trial on the December 2019 circuit to Tuktoyaktuk. The Crown argued that the allegation involved domestic violence so there was a high public interest and that there was no laches. The adjournment request could not have been avoided, as the officer could not have attended court that day.
The defence did not consent to the adjournment and stated that there was a concern about laches and it was not clear that the officer could not have notified the Crown earlier that he was leaving the jurisdiction.
Following the Crown's adjournment application and hearing the submissions of the Crown and defence, the trial judge dismissed the application. The entirety of the trial judge's reasons for dismissing the adjournment application were "Yeah, sounds like laches to me. Adjournment denied."
The context surrounding the application must be kept in mind in assessing the sufficiency of the reasons. This was a Territorial Court circuit to the community of Tuktoyaktuk, a community that the Territorial Court travels to several times a year on court circuits.
Charbonneau, C. J. noted in R. v. Koe, 2019 NWTSC 58 that the Territorial Court is busy, deals with many cases on a circuit, and rulings are often brief, stating at paragraphs 54 to 55:
Territorial Court circuits are usually very busy. In that court, counsel and the judges are required to deal with a large volume of cases with time constraints and other challenges. The overall pace is fast and sustained. Understandably and especially for routine cases, the submissions and rulings are brief.
But even in that environment, legal issues that arise during a criminal trial must be addressed.
In this case, the ruling was brief and the reasons for denying the adjournment constituted the bare minimum. Aside from denying the adjournment, the reasons told us laches and nothing more. We know the context of what the laches was about because of the submissions of counsel.
Counsel's submissions were brief and the focus was on the issue of laches. In submissions, the Crown made arguments about why there was no laches, and the defence submission on laches was that there was a concern that the officer could have notified the Crown earlier that he was leaving the jurisdiction.
While the trial judge apparently found laches, the basis on which the trial judge did so is not clear from the reasons. While it appears that the trial judge viewed that the Crown had not taken reasonable steps to procure the attendance of the officer in concluding that they were guilty of laches, it is not clear whether this was on the basis of the submission of defence counsel or on another basis.
Were there other steps that the trial judge felt should have been taken by the Crown in advance of the trial date? If the officer had notified the Crown of his unavailability earlier, as suggested by defence counsel, would the Crown be not guilty of laches? Or was more required of the Crown? And if so, what?
The conclusion of laches without more raises more questions than answers. Not all of these questions needed to be answered in the decision and it was not necessary that the trial judge embark on a detailed analysis of the concept of laches, but something more than simply stating laches was required.
The reasons of the trial judge also do not address the domestic violence allegation and the high public interest in seeing that these matters are adjudicated. It can be assumed that the trial judge was aware of the nature of the allegation, as the information revealed the respondent was charged with an assault and the Crown in submissions referred to the nature of the allegation being one of domestic violence and that there was a high public interest.
The reasons, however, only refer to laches and no other considerations. The conclusion that could be drawn is that the trial judge determined that the Crown was not entitled to an adjournment in a case of domestic violence in a jurisdiction with significant domestic violence problems on the first scheduled trial date when the accused was out of custody and there was no apparent prejudice to the accused's position because a police officer failed to advise the Crown at an earlier date that he was leaving the jurisdiction. However, the reasons do not say this.
The reasons do not address domestic violence or the high public interest in pursuing the adjudication of cases of this nature. It is not clear what role, if any, those considerations played in the trial judge's decision to deny the adjournment, and it is not clear that there was any balancing of these competing considerations.
Taking into account the applicable principles for appellate review of the sufficiency of reasons and keeping in mind the challenges and constraints placed upon Territorial Court judges, I conclude, with respect, that the reasons of the trial judge were not sufficient in this circumstance to let the Crown or the public know why the decision had been made, or to permit meaningful appellate review.
Turning to the trial judge's decision to deny the adjournment application, it is accepted that the test in Darville v. R (1957), 116 CCC 113 sets out the conditions that must be generally met in order for a party to be entitled to an adjournment on the basis that a witness is not available, and they are:
1) the absent witness must be a material witness;
2) the party applying for the adjournment must not have been guilty of laches or neglect in procuring the attendance of the witness; and
3) there is a reasonable expectation that the witness will be available at a future trial date.
There is no dispute that the only issue was whether the Crown had been guilty of laches in procuring the officer's attendance for trial. The officer was a witness who was material, as he was required for a voir dire into the accused's statement, which the Crown stated would make out the offence, and the Crown had advised that the officer would be available at a future trial date and the Crown was proposing December 2019, when all of the witnesses would be available for the trial date.
So in considering whether there has been laches, the party seeking the adjournment is required to have taken reasonable steps to ensure the attendance of a witness for trial. Ultimately, a judge's decision whether to grant an adjournment is discretionary and accorded deference. The discretion of the trial judge must be exercised transparently and in a principled manner.
The defence objection at trial with respect to laches was that it was not clear that the officer could not have notified the Crown earlier that he was leaving the jurisdiction. Earlier notification of the Crown of the officer's availability would not have changed the fact that the officer was not available for the scheduled trial date in Tuktoyaktuk.
The timeline in which this occurred was a relatively short one. The officer learned that he was not available on July 22nd and the Crown was advised of this on August 2nd. The trial date was August 28th. There may have been options available to the Crown that could have addressed this issue: seeking to have the officer testify by video or telephone or seeking an adjournment in advance of the trial date.
The officer was a material witness. He was required on a voir dire into the admissibility of the accused's statement, which, as the Crown had stated, made out the offence. The victim, the Crown also advised, was not cooperative, so the evidence of the officer was obviously necessary.
The Crown advised the trial judge that there was no videoconferencing capability in Tuktoyaktuk for the officer to testify. As for the prospect of the officer testifying by telephone, in those circumstances, it was not ideal and I suspect likely to be opposed. The Crown cannot be faulted for not pursuing that option.
The Crown could have sought an adjournment in advance of the trial date by bringing forward the matter. However, that would not have changed the ability of the Crown to proceed on the scheduled trial date. While it may be good practice to bring forward matters for adjournment when possible in advance of a trial date in Territorial Court, I am not prepared to say that it is required to avoid a finding of laches in seeking an adjournment because of the unavailability of a witness.
At the end of the day, if the witness was truly unavailable, the Crown was not going to be able to procure the witness's attendance for the trial date regardless if the matter had been brought forward or not.
All of these may have been considerations that the trial judge considered and took into account in denying the Crown's adjournment application, but the absence of reasons means that an appellate court cannot determine what factor those considerations may have played, if any, in the decision and on what basis the finding of laches was made. The failure to address the issue of domestic violence and the high public interest in cases of this nature also cause concern that the trial judge may not have exercised his discretion to deny the adjournment in a principled manner.
The reasons that were provided were not sufficient to permit a meaningful appellate review. The reasons were not transparent and it is not clear that the trial judge exercised his discretion to deny the adjournment in a principled manner. For these reasons, I am granting the Crown's appeal.
(PROCEEDINGS CONCLUDED)
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 27th day of January, 2021.
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Kim Neeson
Principal