Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut
Citation:

R. v. Dempsey & Oujukoaq Fisheries Ltd.,

2016 NUCJ 32

Date:
Docket:
Registry:

20161214
08-13-414
Iqaluit

Respondent:

Her Majesty the Queen

-and-

Applicant:
David Dempsey & Oujukoaq Fisheries Ltd.
________________________________________________________________________
Before:

The Honourable Madam Justice Tulloch

Counsel (Respondent):
Counsel (Applicant):

Barry McLaren; Sarah Bailey

Geoffrey Spencer

Location Heard:
Date Heard:
Matters:

Iqaluit, Nunavut
November 25, 2016
Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11, s. 11(b); Voir Dire

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

I. INTRODUCTION
[1]

An application on behalf of David Dempsey [Dempsey] & Oujukoaq

Fisheries Ltd. [Oujukoaq], has been made seeking a stay of
proceedings on the basis that the right of the accused to be tried
within a reasonable time, pursuant to 11(b) of the Canadian Charter of
Rights and Freedoms, Part I of the Constitution Act, 1982, being
Schedule B to the Canada Act 1982 (UK), 1982, c 11 [Charter], has
been violated.

[2]

The applicants, Dempsey and Oujukoaq, are charged that on or about

October 20, 2012, they were fishing for Greenland halibut in a closed
fishing area contrary to section 78 of the Fisheries Act, RS 1985, c F14 [Fisheries Act].

[3]

This delay application is being heard ten days before the next
scheduled trial date.

[4]

The court was first notified of an 11(b) Charter application in October

and it was discussed during a pre-trial conference held on October
26, 2016, wherein the trial date of December 5-9, 2016, was
cancelled.

[5]

I heard a full day of submissions from the Crown and Defence on

November 25, 2016.

[6]

I am now prepared to make my decision.

II. THE JORDAN ANALYSIS

[7]

The Supreme Court of Canada decision in R v Jordan, 2016 SCC 27,

335 CCC (3d) 403 [Jordan], was released on July 8, 2016. It is now
the leading case with respect to how to appropriately calculate
unreasonable delay pursuant to section 11(b) of the Charter.

[8]

Jordan together with the SCCs companion case of R v Williamson,

2016 SCC 28, [2016] SCJ No 28 (QL) [Williamson], released at the
same time, focusses on the importance of timely justice. The court felt
that there was a strong need to address what they referred to as a
culture of delay within the justice system. They felt an obligation to
provide a new analysis that must be considered by all courts in an
effort to minimize the problems they identified. Although it is the
accused that is directly impacted by delay, the SCC saw this as a
societal responsibility.

[9]

Accordingly, the court in Jordan set presumptive ceilings for delay.

The case established a ceiling of 18 months for provincial court
matters proceeding without a preliminary inquiry and 30 months for
provincial court matters involving a preliminary inquiry. For matters in
superior court, the ceiling was also set at 30 months.

[10] This is a case where both Crown and Defence agree that the delay
from the laying of the charge to the anticipated end of the trial is just
over 42 months.
[11] In order for me to decide whether or not the delay in this case
exceeds the presumptive ceiling, I must first do three things:
(a) Establish what the ceiling is in this particular case;
(b) Review the record carefully to establish any delay that
was solely attributed to the Defence or was the subject
of a Defence waiver, and;
(c) Subtract Defence delay to establish the appropriate net
delay.
[12] If the net delay exceeds the applicable presumptive ceiling, the
burden then shifts from the Defence to the Crown.
[13] The Crown must then convince the court on a balance of probabilities
that there were exceptional circumstances (categorized as discrete
events) which occurred to make the delay reasonable. These are then
subtracted from the net delay to determine the appropriate remaining
delay.
[14] Any period of delay that the Crown or the system could have
reasonably mitigated does not count.

[15] If the remaining delay exceeds the presumptive ceiling, the Crown
must demonstrate that the case was particularly complex and thus the
delay was justified.
[16] If the remaining delay falls below the presumptive ceiling, the Defence
must demonstrate that it was nonetheless unreasonable.
A. What is the presumptive ceiling in this particular case?
[17] This case involves a regulatory offence under the Fisheries Act. On
December 2, 2013, the Crown proceeded by way of summary
conviction.
[18] In all other jurisdictions within Canada, this is a charge that would be
tried in Provincial Court. In NWT and the Yukon such a case would be
tried in Territorial Court.
[19] The Nunavut Court of Justice is unique because it is the only single
level trial court in Canada. Section 573(1) of the Criminal Code of
Canada, RSC 1985, c C-46 [Criminal Code] says the following:
The powers to be exercised and the duties and functions to be
performed under this Act by a court of criminal jurisdiction, a
summary conviction court, a judge, a provincial court judge, a justice
or a justice of the peace may be exercised or performed by a judge of
the Nunavut Court of Justice.

[20] Defence points to a number of cases including the Ontario Superior

Court of Justice decision in R v Christie, [2003] OJ No 1240 (QL), 57
WCB (2d) 265, to support his argument that the presumptive ceiling in
this case is 18 months. That case says at paragraph 3(3): [a]
summary conviction offence is one that may only be tried by a
provincial court judge or a justice.
[21] Crown counsel points to Section 573(2) of the Criminal Code to
support their position that the presumptive ceiling in this case should
be 30 months. That section says as follows:
A power exercised or a duty or function performed by a judge of the
Nunavut Court of Justice under subsection (1) is exercised or
performed by that judge as a judge of a superior court.

[22] Further, the Crown made submissions that because this is a complex
case involving considerable trial time and requiring a voir dire, it is
comparable to a provincial court trial wherein a preliminary inquiry has
taken place.
[23] On this last point, a voir dire is a legitimate application and the SCC
decision in Jordan does not equate a preliminary inquiry with a voir
dire.
[24] There is no doubt that judges in Nunavut wear different hats;
sometimes during the same court proceeding.
[25] That being said, when dealing with matters proceeded summarily by
the Crown, their function is akin to a provincial court judge. This is
supported by section 573(3) of the Criminal Code which talks about
the same limitations as a provincial court judge when presiding at a
preliminary inquiry.
[26] It is also supported by Nunavuts system of appeal.
[27] Further, the complexity of the case has nothing to do with the
determination of the presumptive ceiling under the Jordan analysis.
[28] I agree with the Defence that it would be wrong to find that just
because Nunavut is a single level trial court, all offences for purposes
of delay would attract the higher presumptive ceiling of 30 months.
[29] I appreciate that the Crown in this case is not asking me to do that,
but it would be unfair to treat this case different from other cases
where the Crown has proceeded summarily.
[30] Accordingly, I find that the presumptive ceiling in this case is 18
months.
B. What does the record show in terms of delay attributed to the
Defence?
[31] The total delay in this case is calculated from the date that the
charges were laid (May 31, 2013) to the end or anticipated end of the
trial (Dec. 9, 2016).

[32] In order to calculate the net delay, I will use the 42 months that both
counsel have used in their materials and throughout their
submissions.
[33] I have very carefully reviewed the record of appearances with respect
to this matter which must be the first step in any application for delay
under the Jordan analysis.
[34] Jordan makes it very clear that in calculating net delay I must only
subtract those periods where the delay was caused solely by the
conduct of the Defence or those periods where the Defence has
specifically waived their 11(b) Charter rights.
(i). June 3, 2013, transcript
[35] The accuseds first appearance in the Nunavut Court of Justice took
place on June 3, 2013.
[36] At that time, the Crown proceeded summarily and Defence asked that
the case be adjourned. Defence sought a date that would not interfere
with the applicants fishing season which was identified as being from
mid-May to mid-November. The following exchange took place
between the Court and the representative appearing for the accused:
THE COURT: I take it, sir, in making that request for Dempsey and
the company they are giving up their right to having a speedy trial in
this matter?
MR. KAPLEGBO: Yes Your Honour.
{Transcript: p 3 at line 22}

[37] The Court then adjourned the matter to a date when the accused
would be able to be present. The date was December 2, 2013.
[38] Those six months are clearly attributable to the Defence.
(ii). December 2, 2013, transcript
[39] Defence counsel, Ms. Molgat, had just recently been retained by the
applicants and she requested an adjournment to February 3, 2014.
Defence counsel clearly waived any delay {Transcript: p 3 at line 17}.
[40] Those two months are clearly attributable to the defence.

(iii). February 3, 2014 to Aug. 11, 2014, transcripts

[41] The record shows that during this period of time there were six court
appearances. Each one is attributed to both Defence and Crown.
These adjournments were for the purpose of allowing resolution
discussions to take place between the parties prior to setting a date
for trial.
(iv). August 11, 2014, transcript
[42] It was at this point in the proceedings that the Crown asked to set a
date for trial. Dates in January, February, and March of 2015, were
suggested in order to accommodate the accuseds participation in the
fishing season. The Crown indicated five days for their evidence and
one or two extra days were added by the Defence. Counsel on behalf
of Dempsey and Oujukoaq entered not guilty pleas.
[43] Two dates were set at this time. The first date was requested by the
Defence with respect to the admissibility of Captain Dempseys
statement given at the time of the alleged offence. That date was set
for January 7, 2015.
[44] The Trial Coordinator indicated to the court that there were no other
available dates during the first part of 2015. Defence counsel advised
the court that dates in 2016 were fine with him. The transcript
commencing at p 5, line two, says the following:
THE TRIAL COORDINATOR: We dont have dates for the beginning
of next year at all. We had discussed this already; I was discussing it
with his assistant actually. We are looking at 2016 dates if you want
the beginning of the year.
MR. MAY: So dates in 2016, if that is whats available, thats fine
with counsel for the defence.
THE TRIAL COORDINATOR: Are January, February and March the
only time when fishing is a down season?
THE COURT: That is the problem, but I want to make clear to
defence counsel that we can have an earlier trial date than that, and is
your client prepared to waive his 11(b) rights?

8
MR. MAY: Yes, Your Honour, both Mr. Dempsey and Oujukoaq
Fisheries are prepared to waive 11(b), understanding they have been
accommodated on the setting of the date.

[45] The trial date was then set for January 11, 2016.
[46] During argument, counsel for the Defence was prepared to
acknowledge responsibility for 7 months of this delay (from the
issuance of the decision on the Charter application to the trial date).
[47] The record is clear that Defence waived their Charter 11(b) rights
from August 11, 2014 (the date the trial date was set) to January 11,
2016. This is a total waiver of 17 months.
[48] We have a very busy court schedule in this jurisdiction and having to
accommodate a six or seven month period when the accused are not
available due to their own economic interests causes the court
additional challenges which cannot easily be met.
[49] This is the reason why the trial date was set almost a year and a half
ahead of time.
[50] It is the very reason that the court sought to have Defence counsel
waive their 11(b) Charter rights at that time.
[51] Dates in January, April, July, and August of 2015, were simply to
complete interim matters, set pretrial conferences, and to confirm the
January 2016 trial date.
[52] I am disappointed that in spite of this express waiver, Defence chose
to cancel the trial date which had been agreed upon to accommodate
the applicants in favour of bringing this application for delay.
[53] Those 17 months are clearly attributable to the Defence.
C. What is the net delay in this case?
[54] The total delay in this case is 42 months and 25 days. 1

NOTE: although Defence Counsel made submissions that the delay was just over 42 months,
the Crown calculated the exact time to be 42 months and 25 days and therefore I am prepared to
accept that calculation for purposes of this application.

[55] The delay attributable to the Defence is 25 months. That means that
the net delay in this case is 17 months and 25 days.
III. CONCLUSION
[56] The net delay in this case does not exceed the presumptive ceiling
although it comes very close.
[57] This, of course, does not conclude the matter.
[58] I must now turn my mind to whether or not the Defence has
demonstrated that the delay was nonetheless unreasonable.
[59] To do this, the Defence must establish two things: (1) that it took
meaningful steps that demonstrate a sustained effort to expedite the
proceedings; and (2) the case took markedly longer than it reasonably
should have (Jordan, para 48).
[60] From my careful review of the record in this matter, I am not
convinced on a balance of probabilities that the lengthy delay in this
case is unreasonable.
[61] It is clear from the very first appearance that the Crown and the Court
sought to accommodate the accuseds economic interests in setting
court dates outside their fishing season which was said to be from
mid-May to mid-November.
[62] Mr. Dempsey only appeared in court once which was for the purpose
of giving evidence on the Charter application heard on January 7,
2015.
[63] A representative from Oujukoaq Fisheries Ltd. also appeared only
once in 2013, on the first appearance.
[64] Apart from those two instances, both parties have been ably
represented by counsel throughout. They have not had to appear in
court. They have not had to give up their livelihood.
[65] On each and every court appearance, the record shows a spirit of full
cooperation between Crown and Defence.
[66] Disclosure was provided promptly to the Defence and the case has
been pre-tried on a number of occasions.

10

[67] The file has gone through three different Defence counsel and three
different Crown prosecutors have been assigned.
[68] It is unfortunate that the first trial date had to be adjourned because
the Crown was not prepared to proceed. This delay is fully attributable
to the Crown and that is why the court chose to make the next trial
date peremptory on them.
[69] Both Crown and Defence are at fault for not following up with each
other in a way that would expedite the proceedings.
[70] Prior to the first trial date in January of this year, both Crown and
Defence were new to the file and yet neither contacted the other to
discuss matters before the pre-trial conference which the court set up
one month before the trial was scheduled to proceed.
[71] I cannot find that the Defence took meaningful steps to demonstrate a
sustained effort to expedite the proceedings. The same is true of the
Crown, but in this case the onus is on the Defence {January 6, 2016
Transcript, p 7}.
[72] The trial has now been set to proceed twice. The first adjournment
lies at the feet of the Crown and this second adjournment lies at the
feet of the Defence.
[73] Through various pretrial conferences, the court has learned that this
trial is likely to take a full five days or longer to complete. The Crown
we know is calling an expert witness (a hydrographer) who was
unable to attend the first trial for medical reasons.
[74] Because this application was brought just prior to the second trial
date, the Crown had already prepared 16 subpoenas which are
contained in the court file without being served.
[75] The Nunavut Court of Justice does not often have these types of
fishery cases before the court. It is a case with far reaching
implications for commercial fishermen in Canada. It is a case that
deserves to be decided on its merit.
[76] Accordingly, given the accommodation allowances and the added
complexity of this case, I cannot find that this case took markedly
longer than it reasonably should have.

11

[77] I am therefore dismissing the application. Counsel should contact the

court as soon as possible to set a new date for trial in this matter.
[78] I must end by saying that it is extremely unfortunate, both for the
accused and for the court, that valuable time has been lost in dealing
with this application instead of proceeding with the trial date already
set.

Dated at the City of Iqaluit this 14th day of December, 2016

___________________
Justice B. Tulloch
Nunavut Court of Justice