Territorial Court
Decision Information
Decision information:
Abstract: Transcript of a ruling (s. 486.3 of the Criminal Code - appointment of counsel)
Decision Content
T-1-CR-2005-002277/T-1-CR-2006-0000591
IN THE TERRITORIAL COURT OF THE NORTHWEST TERRITORIES
IN THE MATTER OF:
HER MAJESTY THE QUEEN
- v -
LEVI PEETOOLOOT
Transcript of a Ruling (s. 486.3 C.C. - appointment of
counsel) made by The Honourable Judge R. Gorin, in
Yellowknife, in the Northwest Territories, on the 7th
day of April, A.D. 2006.
APPEARANCES:
Mr. M. Himmelman: Counsel on behalf of the Crown
Ms. P. Taylor: Counsel on behalf of the Accused
-------------------------------------
Charges under ss. 279(2) C.C., 271 C.C. 266 C.C.
and 145(2)(a) C.C.
BAN ON PUBLICATION OF COMPLAINANT/WITNESS PURSUANT TO
SECTION 486 OF THE CRIMINAL CODE
1 THE COURT: This is my decision on the
2 Crown's application to have counsel appointed for
3 the purpose of cross-examining the complainant at
4 the accused's preliminary inquiry.
5 Mr. Peetooloot is charged with unlawful
6 confinement, sexual assault and common assault.
7 The date on which the offences are alleged to
8 have happened in Yellowknife is July the 29th,
9 2005. He is also charged on a separate
10 Information with failing to attend court on
11 December the 13th, 2005. That was one of the
12 dates which had been scheduled for his
13 preliminary inquiry on the first set of charges
14 that I have mentioned.
15 On the first three charges there have been
16 11 court appearances prior to today's date.
17 On these charges the accused had elected to
18 be tried by a judge and jury. He maintains that
19 election at this particular point. Because of
20 that initial election, a preliminary inquiry in
21 this court was required. The preliminary inquiry
22 was first scheduled for November the 18th of last
23 year. On November the 18th it was adjourned to
24 November the 23rd. On November the 23rd it was
25 adjourned to December the 13th. It appears that
26 the accused has never retained counsel.
27 The court record indicates that on December
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1 the 13th a warrant was issued for the accused's
2 arrest when he did not attend court. It appears
3 that the warrant was exercised, that is, the
4 accused was arrested on the warrant on March 22nd
5 of this year in Taloyoak.
6 Because he is charged with failing to attend
7 court, the onus is now on the accused to show
8 cause why he should be released from pre-trial
9 detention on conditions with or without bail or
10 otherwise. In other words, he is now in a
11 "reverse onus" situation, as it is typically the
12 Crown that would bear the onus of showing why the
13 accused should be detained pending his trial.
14 It appears that the accused has not
15 attempted to show cause why he should be
16 released. He is currently being held in custody
17 on a Form 19 remand warrant. I do not see a Form
18 8 on the court file at this particular point.
19 As I have indicated, the accused has not yet
20 retained a lawyer; arrangements have not yet been
21 finalized even though he is in custody at this
22 particular point.
23 An order appointing counsel to cross-examine
24 the complainant was previously made. However, as
25 noted by Chief Judge Bruser, the previous order
26 was arguably made without jurisdiction due to the
27 fact that it was made prior to the coming into
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1 force of section 486.3 of the Code. The Court
2 that made the earlier order had been advised by
3 the Crown that the section was in force when it
4 was not, although the Crown counsel in question
5 later advised of his error.
6 Clearly I do have the jurisdiction, that is,
7 the power to order that counsel be appointed for
8 the purpose of such cross-examination. The
9 applicable section is 486.3(2). For the benefit
10 of counsel, that would be in the supplement.
11 I find that the prerequisites have been made
12 out. The Crown has made the necessary
13 application to allow me to have jurisdiction.
14 Under the circumstances, given the nature of the
15 charge, I am satisfied that the order is
16 necessary to obtain a full and candid account
17 from the witness. In making this determination,
18 I take into account the factors which are set out
19 in subsection 486.1(3) of the Code, as I am
20 required to do. Because I am satisfied that the
21 order appointing counsel for the purposes of
22 cross-examining the complainant is necessary to
23 obtain a full and candid account from the
24 witness, subsection 486.3(2) requires that I
25 "shall" make the order. Because I am so
26 satisfied, I have no discretion. Therefore the
27 order will go.
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1 The clerk will make the necessary
2 arrangements to retain counsel. Obviously the
3 lawyer who is appointed will have to be
4 compensated. He or she cannot simply be pressed
5 into service by the court.
6 I have a letter on the court file from the
7 Executive Director of the Legal Services Board,
8 in other words Legal Aid. The letter was written
9 as a result of the earlier order made prior to
10 section 486.3(2) coming into force. That letter
11 indicates that the board will not be paying the
12 fees of counsel who are appointed pursuant to
13 section 486.3. I certainly do not have the
14 jurisdiction or the power to order that the Legal
15 Services Board pay. In my view, just as the
16 executive branch of government should not attempt
17 to interfere with the judicial branch, the
18 judicial branch should not attempt to interfere
19 with the executive. So I make no comment on the
20 position of the Legal Services Board as expressed
21 through its Executive Director.
22 However, as is clear, section 486.3 of the
23 Code allows a judge of the Territorial Court to
24 appoint counsel and where certain criterion are
25 met, as they have been in the present case, the
26 section is mandatory, not merely permissive.
27 As I have already stated, counsel should not
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1 be pressed into involuntary service and clearly
2 counsel should be compensated if counsel is not
3 salaried by a government department or board.
4 As stated, the section does not expressly
5 give me the power to order that a particular
6 government department or board pay a lawyer's
7 fees, so I do not know if payment will come from
8 Legal Aid, the Territorial Department of Justice,
9 Court Services, or from the Federal Department of
10 Justice.
11 Presumably there would be a conflict if the
12 Federal or Territorial Department of Justice were
13 simply to provide one of its lawyers to act on
14 behalf of the accused since both departments are
15 responsible for the prosecution of criminal or
16 quasi criminal charges, although the same could
17 not be said for the Legal Services Board which is
18 theoretically independent of the Territorial
19 Government for that very reason.
20 However, I will point out the obvious, and
21 that is that ultimately it will be the taxpayer
22 who will be picking up the tab regardless of
23 which department or board pays.
24 The clerk should take immediate steps to
25 retain counsel, and the clerk should let counsel
26 know that his or her fees will be covered,
27 assuming that the lawyer in question works for a
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1 private firm. Presumably, the fees will be
2 covered at the lawyer's full private rate and not
3 at the reduced legal aid rate.
4 I note parenthetically that one of the
5 original rationales for the implementation of the
6 legal aid program was to save the government
7 money by allowing for a reduced rate. Before
8 legal aid was implemented, the courts often
9 simply appointed counsel who were then able to
10 charge their full private rate rather than a
11 reduced rate. I will not opine on the topic.
12 I am directing that a transcript of these
13 proceedings be prepared forthwith and that the
14 following persons be provided with copies of the
15 transcript: Firstly, the Territorial
16 Government's Deputy Minister of Justice; the
17 Assistant Deputy Minister with the relevant
18 responsibilities; the Director of Court Services
19 for the Territorial Department of Justice; the
20 Executive Director of the Legal Services Board,
21 that is Legal Aid; the Regional Director of the
22 Federal Department of Justice here in
23 Yellowknife; Chief Judge Bruser; and of course
24 there should be a copy for the court file as
25 well.
26 As I noted earlier, if Mr. Peetooloot
27 ultimately realizes his intentions to retain
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1 counsel, that is retain his own counsel to
2 represent him at the trial, then the need for the
3 order which I have made here today will clearly
4 be obviated. However, in my view the matter has
5 gone on far too long as it is, and the date needs
6 to be set and the necessary steps have to be
7 taken to ensure that there is no further delay.
8 (CONCLUSION OF RULING)
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11 Certified to be a true and
accurate transcript pursuant
12 to Rule 723 and 724 of the
Supreme Court Rules of Court.
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15 Annette Wright, RPR, CSR(A)
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