Friday, February 17, 2017

Role of Trial Judge: Nelson (City) v. Mowatt, 2017 SCC 8

It is not the role of appellate courts to second‑guess the weight to be assigned to the various items of evidence. Absent palpable and overriding error — that is, absent an error that is plainly seen and has affected the result — an appellate court may not upset a fact‑finder's findings of fact.


Monday, February 13, 2017

Speedy Trial

How long should a criminal case take to get heard?

The Canadian Constitution provides that anyone charged with an offence is entitled to a speedy trial. The concept is that having a charge hanging over your head for a long time is not fair - what's more evidence for trial may not last well. Witnesses' memories fade over time and proving a case becomes progressively harder as time goes on. Society also has an interest in having cases heard promptly. Crime and punishment should go together and not be separated by years of delay.

In the fairly recent past trials were heard much more quickly than they are today. In the early 1960s even murder cases were tried within six months of the accused being charged. My grandfather, who was a lawyer, told me that simple cases – like shoplifting or street walking were sometimes tried within a week or so of charges being laid! Of course justice can be too fast. Sometimes having a trial too quickly can mean that neither side is properly prepared and innocent people can be convicted. It's better to do something right than to do something quickly.

All that said, the Supreme Court of Canada recently decided that cases were moving too slowly and set a presumptive guideline for cases.

Put simply, less serious cases should be tried within 18 months and more complex cases – things like murder or arson – should tried within 30 months. If the defendant delays the case on purpose that time is not counted but otherwise, except if something unexpected happens or the cases is remarkably complex, the timelines are firm. If a case exceeds the timeline, in general, the charges will be stayed and the accused never tried.

What is something unexpected? It's not totally clear but examples would be the judge getting sick just as trial starts or a witness disappearing unexpectedly. It needs to be something that could not reasonably have been predicted. Would being weathered out count in Nunavut? Maybe, although being stuck by fog or blizzard is hardly a surprising or unusual event.

For a case to be remarkably complex so as to get beyond the timeline it has to be an extraordinary situation. A recent Ontario decision held that a murder case with dozens of witnesses and thousands of documents did not qualify – perhaps only major terrorism or large scale fraud cases could fit within that exception.

One might ask why would the defendant ever delay as a case "on purpose" and if they did wouldn't that be unethical? The short answer is no – there are many reasons for a defence delay that slow down a case but which are totally reasonable and acceptable.

I had a case set for trial the end of this month. It was set for eight days and if the accused was found guilty he would likely go to jail for some time. However he learned his aged father was in serious decline – not something unexpected but if he was convicted he would likely not see his father again. He wanted to see his father – more important his father wanted to see him – before his father passed and so the trial was (with Crown consent) adjourned. Not a thing wrong with this adjournment but the delay caused by it will not could in the timeline.

Wednesday, February 8, 2017

Why should I settle?

Suppose you lent money to someone for an investment. It was money that you had saved up over the years and you expected to have a decent rate of return that would help you in living your life. But then the person didn't pay the interest you agreed to and what's more, the person won't even give you the amount you lent back.
What should you do?
The obvious thing to do, if you have asked for the money and been ignored or told the person won't pay, is to take them to Court and ask a judge to order they give you the money.
The trouble is going to Court is slow and expensive and the person who owes you the money says "I still think you are not right and I should not pay you anything BUT if you will settle the law suit I will give you right now about half of what you are suing me for". It seems foolish to take just half of what you are entitled to but maybe it's not a mistake to take it.
There are many reasons you might want to take less than you are owed.
The first is that it may be the person who owes you the money may not have enough to pay. Getting a judgment for money is helpful but it does not mean you will get paid – you cannot collect money from someone who doesn't have any money. If you can get some money right now that may be better than having a judgment for what you are owed but being unable to collect any of it!
The next reason you might want to settle is the time a civil case takes to get to trial. It can take years – the Courts are very busy and prioritize criminal and family matters. If you need money now it may be better to take what you can get right now and then accept less than what you are fully owed.
Another reason to settle is the cost of a trial. It's very hard to be your own lawyer and conduct a case yourself. But hiring a lawyer is terrifically costly – it is tens of thousands of dollars to go to trial even a short trial. It may be you cannot afford a trial and so must take what you can get. This isn't very fair but it's the reality.
The final reason to settle is because it may be that your case is not as good as you think. Obviously you think you are right but the judge might not agree. Nothing is ever certain in Court and that may suggest settling is a good idea.
Taking less than what you are owed can be a bitter pill but sometimes it makes good sense.

Monday, February 6, 2017

Helpful Gladue sentencing case

R. v. Mikijuk, 2017 NUCJ 02:

[16] One of these important cases is called the Queen v. Gladue [Gladue] . It is called that because in Canada all criminal prosecutions are done in the name of Her Majesty the Queen. Gladue was the name of the offender in that case. Gladue is a very important case. From the highest court in Canada, the Supreme Court. In fact, the Nunavut Court of Justice is a Gladue court. We serve all Nunavummiut. To make a long explanation short, our court must account for the unique circumstances of the Inuit people, their history, and society. And, importantly today, how this reality has had an impact on Mr. Mikijuk.

[17] Nunavut is a beautiful, wonderful land. It is a great place to live. Nunavummiut are deservedly proud of their ancient heritage and history. All of us who live here are enriched by Inuit Qaujimajatuqangit.

[18] But, Nunavut is in crisis.  I must take this fact into account.

[19] Alcohol abuse is tearing apart our society. Binge drinking for many is a normal part of life. Alcohol abuse  is destroying the lives of Nunavummiut. Alcohol abuse is tearing apart families. Alcohol abuse fills our child protection dockets - right across the territory. Alcohol abuse is filling our jails. Offenders convicted of serious alcohol-related crime are thrown into the maw of southern prisons; isolated and far from home. Every court circuit, we learn bootlegging is rampant. Everywhere. The Liquor Act' and past sentences have not been, and are not, effective deterrents. Bootleggers don't just sell alcohol; bootleggers callously and calculatedly purvey human misery. Our sentencing regime should reflect that fact.

[20] Seventeen years after division from the NWT, there is still no residential treatment facility in Nunavut. Nunavummiut who belong in secure residential treatment wind up in jail. Those few Nunavummiut who are lucky enough to get residential treatment are sent south. Again, where they are isolated and far from home. Those few frontline responders we have are given few resources to deal with the epidemic of alcohol's victims. Few resources are available to help our many neighbours who suffer from real mental health concerns, like Fetal Alcohol Spectrum Disorder. The need to address these issues is urgent.

[21] In my lifetime, Inuit were  forced off the land. Many were moved, sometimes forcibly, by alien authority into artificial and isolated communities. Children were taken from the bosoms of their families and sent to far away residential schools. One of the purposes of these schools was to supplant their culture and language. That painful legacy reverberates today. Sexual predators like Cloughley, De Jaeger, and Horne victimized significant numbers of an entire generation. Their victims suffer still and so do their families. The Inuit world and very way of life was turned upside down.

[22] Inuit society is still adjusting to that collective trauma. Jobs of any kind outside Iqaluit and Rankin Inlet are scarce. What little economy there is government and mineral exploration driven. There is an ongoing and serious housing crisis. Overcrowding plagues many Nunavummiut. Overcrowding affects their health. It adds stress to an already hard life. It contributes to our shocking domestic violence statistics. Safe houses for families in distress are few and far between. A shocking number of our children go to school hungry. Social and recreational infrastructure is woefully lacking. Time and time again we are told that utter boredom leads many youth into delinquency. For some, despair and misery lead to thoughts that suicide is an option. Our suicide rate is many times the national average. Thirty-two Nunavummiut killed themselves in 2016.5

[23] The Nunavut Court of Justice cannot judge offenders fairly without acknowledging and understanding the real impact of this reality on Nunavummiut.


[24] Gladue is a constant reminder to everyone in our justice system. It reminds us that justice, if it is to approach true justice, must be rooted in the community it serves. Gladue informs every decision we make. It is the lens through which we look at every case. Every sentence of the Nunavut Court of Justice involving an lnuk is a Gladue sentence. So, there is never a specific Gladue credit.

Saturday, February 4, 2017

Breach of Undertaking, Recognizance, or Probation

A very common charge is for "breach". That's a short form way of talking about a case where someone is under a court order to do something, or to not do something, and they don't obey the order. So, for example, you may be charged with assault and released on the basis that you won't drink alcohol until your trial. You could be charged with "breach" if you go ahead and get drunk anyway. Similarly, you might be convicted of, say, theft and ordered to stay out of Arctic Ventures for six months. If you go in anyway you can be charged with breaching your probation.

"Breach" is a serious offence. It is critical that people obey their conditions that they are bound by. What's more, the "breach" is not based on the underlying charge – an example may make this clearer.

Suppose I am charged with assaulting my brother. I get arrested and a justice of the peace releases me on the basis I stay at least 50 metres away from my brother. That's the Court's order. It turns out that my brother doesn't have any problem with me and we both go hunting together. In the end I am acquitted of assaulting my brother.

All that is well and good but I am STILL guilty of breaching the terms of my release. It doesn't matter that I was ultimately acquitted of assault or that my brother and I are ok with each other. A Court order must be obeyed.

What that means is if you have a condition that is tough to fulfil you cannot just ignore the condition – you have to go back to Court and get the condition changed if the Court agrees it should be. If the term is not necessary in the public good, and it's difficult to comply with, the Court will often change the order. Orders are not designed to be traps that lead to breaches.

Court's take breach matters very seriously. People go to jail for breach on a regular basis. The Court has written the "administration of justice and the public's confidence in the administration of justice depends on compliance with such orders". When a Court order is breached the sentence will be serious enough to tell the individual, and the community as a whole, just how serious the matter is. This is especially so where the breach involves someone's intimate partner – girlfriend, boyfriend or spouse. People will be protected by Court orders only so long as the orders are obeyed.




Of the Law Societies of Upper Canada and Nunavut

Sentence reduced for Charter breach

R. v. Holland 2017 NUCJ 03:

(iii). Charter breach Analysis

[47] Society needs laws. Society also needs to be able to enforce those laws. We could not live in community without laws, and our police. Our free and democratic society also needs independent courts. Our courts settle disputes. Our courts protect our rights and our liberties. The decisions our judges make help to maintain public peace.

[48] Our police are our first line of defence against disorder and lawlessness. We expect our police to place their lives and safety on the line every day. We expect our police to deal with dangerous and difficult situations. We expect our police to make difficult judgment calls in fast­ moving and sometimes volatile situations. Everyone can and does make mistakes. Our police are human just like us; so, we do not expect them to be perfect.

[49] We entrust our police with extraordinary authority and power. As well as special protections. Our police are trained in the criminal law they are sworn to uphold. They are trained specifically on how to deal with difficult people and situations. In return, we expect our police to uphold the law, not to break it.

[50] Nunavummiut expect just consequences when someone breaks the law. Our police are not exempt from that expectation. These consequences must be meaningful lest the lesson be ignored, or forgotten.

[51] This case is troubling. The Crown acknowledges the police violated Holland's Charter rights. And let us be clear - the Charter protects each and every one of us; whether or not we are suspected of having broken the law. In asserting Mr. Holland's rights, this court defends the rights


and liberties of all its citizens. It has raised a serious issue for this court and for all Nunavummiut. When can a police officer legally enter your home and arrest you? Deprive you of your liberty? Put you in police cells?

[52] There is nothing more basic in our police officer's tool kit than the power to arrest a suspect. It is as basic as his or her uniform, badge, and side arm. The Crown did not call any evidence concerning police training. Despite that lack of information, I cannot accept that any Canadian police officer does not understand the limits on their power to arrest. It is the simplest and most basic concept our police must learn.
[53] Our laws of arrest are crystal clear.

[54] A person may be arrested by a police officer if they are caught committing an indictable offence. Or, a person may be arrested if the police officer has reasonable grounds to believe that the person committed an indictable offence.7 In either case, a lawful arrest has two parts. First, the police officer must tell the person he is under arrest. Second, the police officer must take hold of, or at least touch, the person during the arrest.

[55] Our law is also crystal clear that a police officer may not go into a person's home without an arrest warrant. These warrants are called Feeney warrants. Feeney was the suspect in the case that established this law.8 That arrest warrant must be issued by a judicial officer. The judicial officer is involved to make sure our police have lawful reasons to go into someone's home. In our democracy, that is a healthy and necessary check on the use of police authority.

[56] There are only two exceptions. First, if someone inside the house is in imminent danger of harm. The law calls that "exigent circumstances". 9 Here, police officers do not have to wait for a warrant. If they did, it might be too late for the person in trouble. In Mr. Holland's case, no one was in immediate danger. Exigent circumstances as an explanation for what the police did are not available here.

[57] The second exception happens when the policer officer has been chasing the person, and the person flees into their home. Generally,


7 Criminal Code, s 495
6 R v Feeney, [1997] 2 SCR 13, 115 CCC {3d) 129
9 Criminal Code, s 529.3


but not always, this happens when the suspect is fleeing the scene of the crime to avoid capture, and possibly, his identification. This is called "hot or fresh pursuit". Cpl. Dunphy and Cst. Kerstens claim they were in "hot pursuit" when they forced their way into Mr. Holland's home. However, this is not what happened.

[58] Cpl. Dunphy and Cst. Kerstens were not actively chasing Mr. Holland who then fled to, and into, his home. They had been patiently staking out Mr. Holland's home. For at least five, long, and doubtless tedious, hours. They knew he was inside. Mr. Holland made direct eye contact with Cst. Kerstens several times. They were hoping he would leave so they could arrest him. At least once, Mr. Holland had taunted them from his window. But they were powerless to act - at least until the Feeney warrant arrived. The court was never told why the Feeney warrant never came. There was no other suspect.

[59] Mr. Holland eventually stepped just outside, and let out his dog. He lit a cigarette. Cst. Kerstens decided to act. He called out from a distance that Mr. Holland was under arrest. Mr. Holland yelled "fuck you". Mr. Holland immediately turned, and went right back inside. Cst. Kerstens decided to chase after him although there was no way he could make up the distance. Mr. Holland was inside his home before est. Kerstens was even up the steps. The opportunity to arrest Mr. Holland lawfully was lost.

[60] Instead of stopping at the door, Cst. Kerstens decided to kick his way inside. Through not one, but two doors. According to his evidence, when Cst. Kerstens got inside, Mr. Holland was standing facing him. Mr. Holland was not moving. His arms were at his side. He was not doing or saying anything - just standing there, unarmed, with no weapons in sight. Officer safety concerns did not justify what happened. The constable did not try to deescalate the situation. The constable immediately grabbed Mr. Holland and put him against the wall. In a "C­ clamp". Then a headlock. Then he used a "pain compliance technique". In doing so, in these circumstances, Cst. Kerstens assaulted Mr. Holland. Assault is a crime.

[61] Why did this happen? The answer is found in Cpl. Dunphy's evidence. She was asked why she chased Mr. Holland, and why she didn't call for the warrant. She replied: "In the heat of the ... when all that was happening, no that wasn't ... that wasn't an option". Cpl. Dunphy had started to say "in the heat of the moment", but she caught herself.


[62] This incident happened because the police lost their cool and acted in the heat of the moment. Cs!. Kerstens reacted angrily when Mr. Holland yelled "fuck you" at him after the earlier taunt. Cst. Kerstens lost his cool. He ignored his training. He acted without legal authority. He is accountable, even if he believed he acted in good faith.

[63] When Cst. Kerstens ran after Holland, Cpl. Dunphy should have exercised her authority. She ought to have ordered the junior constable to stop. She failed in her duty to do so. Instead of restraining her colleague, she followed the junior constable inside. She helped Cst. Kerstens subdue Mr. Holland who was rightfully defending himself. By assisting Cs!. Kerstens subdue Mr. Holland unlawfully, Cpl. Dunphy also committed an assault. She, too, is accountable.

[64] As I said earlier, our law is crystal clear. Police may only enter a person's house without a warrant in two situations: if someone's safety is in peril, or if they are in hot pursuit. The only hot pursuit on January 17 was the pursuit by a constable who was hot under the collar, and by his supervisor who claims she did not understand the law.

[65] This illegal forced entry into Mr. Holland's home, and unprovoked assault, are extremely serious breaches of Mr. Holland's Charter rights. In our free and democratic society, these illegal acts undermine our trust in our police. It taints all our police officers. This court cannot turn a blind eye. These breaches must be sanctioned in a meaningful way. The question, then, becomes what is a fair and meaningful remedy?

[66] The Supreme Court of Canada has explained the law I must apply. In 2010, all nine justices issued a unanimous judgment. That case is R v Nasoga/uak 10. A judge may use sentencing principles to denounce police misconduct. Where, as here, that misconduct related directly to Mr. Holland as their suspect, it works to lessen his sentence. It becomes a mitigating factor I must consider and apply in a meaningful way. The sentence reduction must reflect this serious violation of the law by Cpl. Dunphy and Cst. Kerstens.

[67] The court, therefore, reduces Mr. Holland's sentence further by five months, or 150 days