Nunatsiaq News
COMMENTARY: Nunavut May 04, 2018 - 9:30 am

Legal Ease, May 4

Special rules for Nunavut courts

JAMES MORTON

About a year ago I wrote a column on the right to a speedy criminal trial.

A speedy trial in criminal cases ensures that justice is done promptly and that witnesses who testify do so when their memories remain reasonably fresh.

A speedy trial is good for the accused, the complainant and the community as a whole.

That’s why the Supreme Court of Canada set a presumptive guideline for cases. The idea was to make a bright line as to when cases ought to be tried.

Put simply, the Supreme Court said less serious cases should be tried within 18 months and more complex cases—things like murder or arson—should be tried within 30 months.

If the defendant delays the case on purpose, that time is not counted, but otherwise, except when something unexpected happens or the case 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 the trial starts or a witness disappearing unexpectedly. The Supreme Court gave very little “wiggle room” for long trial delays.

The trouble is, at least in Nunavut, that there are special factors that make the fixed timelines set by the Supreme Court a problem.

In Ottawa, for example, judges sit every work day hearing cases. There are no significant breaks in the trial calendar and court closes for bad weather once or twice a year at most.

This means that, if a case has to be adjourned briefly, it can be adjourned briefly. It is possible to move, for example, a simple assault case back a couple of weeks.

But in Nunavut, especially in the smaller communities, court sits on circuits, and if a case has to be adjourned, it may have to go back months later. And sometimes circuits are cancelled by weather.

As a result, the way cases are dealt with in the South does not always work in Nunavut. The assumptions underlying the Supreme Court’s decision are not met here.

Accordingly, the Nunavut courts have ruled that “exceptional challenges” in conducting court proceedings in Nunavut constitute a legitimate exception to the ordinary rules on speedy trials.

Justice Paul Bychok has ruled that Nunavut’s “unique cultural circumstances and exceptional challenges” amount to exceptional circumstances, pointing out weather issues, difficulties with flying into remote communities, and seasonal hunting as factors that can delay court proceedings.

Based on these challenges, the strict timelines set by the Supreme Court have to be modified to ensure proper and fair justice is done in Nunavut for the people of Nunavut.

Bychok commented that “the expanded category of exceptional circumstances ... merely reflects that reality.”

Now the special situation in Nunavut is fact-driven. It may be that over time as the population grows and more judges are appointed that, for example, court will be held every day in Rankin Inlet.

If that happens the analysis may change. But for now, the special circumstances of Nunavut dictate a special regime for trial delays.

James Morton is a lawyer practising in Nunavut with offices in Iqaluit. The comments here are intended as general legal information and not as specific legal advice.

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