Nunavut judge dismisses charges, citing sloppy police, Crown efforts
“One of the roles of this court is to hold the authorities publicly accountable for their actions”
Nunavut Justice Paul Bychok denied a Crown adjournment and dismissed a serious assault charge March 16 because of what he concluded was negligent work on behalf of police and Crown prosecutors. (FILE PHOTO)
A judge has dismissed aggravated assault charges against a Nunavut man, saying both RCMP officers and Crown prosecutors were negligent in they way they handled the case.
In a stinging rebuke of both agencies, Nunavut Justice Paul Bychok refused an adjournment sought by Crown lawyer Sarah Arngna’naaq and instead said Lyta Josephee, accused of assaulting Newkinga Kownirk in September 2015, can go free.
“I am acutely aware that the result of my decision will be the dismissal of a very serious allegation,” Bychok said, according to a transcript of his March 16 judgment.
“However, the court has an overriding duty to hold police and prosecutors strictly accountable for the exercise of their authority. This court cannot be seen to sanction this level of negligence.”
Bychok said granting the adjournment, “would undermine public confidence that this court will protect the rights of all Nunavummiut.”
The case stems from an incident at a residence in Iqaluit Sept. 17, 2015, according to Bychok’s summary of events.
Police showed up to the residence to find the complainant outside. Inside the home were two intoxicated individuals and a 12-year-old child.
Police returned to the residence the next evening and tried to obtain a statement from one of the two adults who had been present but the witness said she was too drunk at the time and, “had little recollection of the events.”
Police did not attempt to get a statement from the child witness on the night of the incident nor the following night.
“Cst. [Sebastien] Ouelette did not provide any explanation as to why he failed to obtain a statement from the sober witness,” Bychok said.
On a request from the Crown, police began to re-investigate the incident five months later, on Feb. 24, 1016.
Both adult witnesses said they were too drunk to remember what happened and when Const. Ouelette tried to speak with the child in question, he was told the child “was not available.”
Josephee first appeared in court on Nov. 30, 2015 and, after a series of other appearances, a trial was eventually scheduled for March 3, 2016. Travel arrangements were made to fly the complainant from Pangnirtung to Iqaluit.
But as that date approached, the Crown prosecutor, who claimed she had only just received the file, determined that more witnesses needed to be interviewed, including the child.
Senior counsel suggested she seek an adjournment and cancel the complainant’s travel arrangements. So she did.
“Crown counsel acknowledged that the Crown ought to have requested the re-investigation in a more timely manner. However, she did not provide any explanation as to why that was not done,” Bychok said.
According to Bychok’s ruling, defence lawyer Kathryn Kellough opposed the Crown’s request for adjournment saying the investigation should have been completed and that any shortcomings in the prosecution’s case “should have been obvious at the prosecutor file review stage.”
Bychok seemed to agree with that.
“One of the roles of this court is to hold the authorities publicly accountable for their actions in a way that defends the constitution while fostering confidence in, and respect for, the administration of justice,” he said.
Bychok first picks apart what he calls “a concerning lack of oversight” on behalf of police for failing to complete the investigation against Josephee. And he says it’s not the first time that’s happened.
“There was another case scheduled on March 3 where the very same issue arose. In that case, the police had failed to attempt to obtain a statement from another obviously relevant witness. They also failed to seize evidence at the scene,” Bychok said.
He said police shortcomings in the Josephee case were compounded by “negligence” on the part of prosecutors who saw obvious holes in evidence related to the case, but waited too long to address them.
And cancelling the complainant’s flight before an adjournment was even granted also concerned Bychok. Had the adjournment been immediately dismissed, the Crown would have been in the, “embarrassing position,” of having no case to call against the accused.
“This case also serves as a reminder to the legal profession in Nunavut,” Bychok wrote in concluding. “It illustrates the importance of seeking adjournments well in advance of the scheduled trial date.”
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