Nunavut judge slams SCC ruling on trial deadlines

Jordan ruling does not account for territory's unique problems, judge says


Justice Paul Bychok said in a recent judgment that the Supreme Court of Canada's Jordan decision on a person's legal right to be tried within a reasonable amount of time does not take Nunavut's unique circumstances into account. (FILE PHOTO)

Justice Paul Bychok said in a recent judgment that the Supreme Court of Canada’s Jordan decision on a person’s legal right to be tried within a reasonable amount of time does not take Nunavut’s unique circumstances into account. (FILE PHOTO)

A Nunavut judge is using a recent ruling to challenge the applicability of an important 2016 Supreme Court of Canada decision, which sets deadlines for criminal cases to be brought to trial or risk being thrown out.

The landmark Supreme Court of Canada decision, R. v. Jordan, changed the way superior courts across the country, like the Nunavut Court of Justice, interpret sections under the Canadian Charter of Rights and Freedoms that protect a person’s legal right to be tried within a reasonable amount of time.

Under the Jordan decision, indictable criminal offenses were given a 30-month deadline, minus defense-related delays or “exceptional circumstances,” to reach trial before the accused can petition a judge to throw the case out—a move known in legal jargon as a “Jordan application.”

Summary offenses, which are less serious, have a lower deadline of 18 months to proceed to trial under R v. Jordan.

But Nunavut Justice Paul Bychok questioned how his court can apply the “square Jordan peg into the round Nunavut hole while doing justice to Nunavummiut,” in a written decision released to the public, Feb. 1.

Bychok argued that the Jordan deadlines run contrary to Nunavut’s geography, Inuit Qaujimajatuqangit, and restorative sentencing practices for Indigenous offenders enshrined by the Gladue principles—which flow from another Supreme Court of Canada ruling.

“I do not believe the [judges who decided] Jordan intended trial judges to re-assert past colonialist attitudes and practices which ran roughshod over the Inuit,” Bychok said.

The judge called for a separate “contextual” interpretation of the Jordan ruling within the territory, recognizing the “unique cultural circumstances and exceptional challenges found in Nunavut.”

Some of those unique circumstances include the territory’s “unforgiving” environment, and its 25 remote communities, which are accessible to the court by plane only.

Circuit courts reach some Nunavut communities only twice a year, Bychok said, and court travel budgets were already overstretched at $2.48 million during the 2016-17 fiscal year.

Blizzards, poor infrastructure or transportation failures mean that very remote communities, like Kugaaruk, may not be visited by a circuit court for over a year under the worst circumstances.

“The cancellation of a Nunavut court circuit has an impact out of all proportion to a similar cancellation in the South,” Bychok said.

Bychok criticized Nunavut’s “staggering” lack of restorative infrastructure, which in turn contributes to repeat offenders and is a problem not accounted for in the Jordan ruling.

“Alcohol abuse is tearing apart the fabric of our society,” Bychok said, and “fills our criminal and family court dockets as well as our jails.”

“Yet, 19 years after division from the Northwest Territories, Nunavut still does not have a single residential treatment centre.”

And Nunavut court policy to stand down cases for burials, funerals and seasonal hunting under Inuit Qaujimajatuqangit, across a vast landmass, further complicates administration of the law under the Jordan deadline.

Bychok’s written responses on the Jordan ruling fulfills a promise he made during a decision delivered orally in court last November, when addressing the Jordan application of Lukasie Anugaa.

Bychok ultimately denied that application on the grounds that multiple mistrials and delays in the case, incurred by Anugaa, brought the total processing period below the 30-month Jordan deadline.

Anugaa ultimately went to trial on charges of rape and indecent assault in January, but was acquitted on all charges.

The Jordan ruling resulted in already backlogged courts in provinces like Ontario and Quebec receiving hundreds of applications to end overdue trials, and forcing some controversial cases to be dropped from the docket under the new law.

But in Nunavut, Jordan applications are still comparatively low, with only four applications made in the territory as of July last year, the Public Prosecution Service of Canada said.

R. v. Anugaa, 2018 Nunavut Court of Justice by NunatsiaqNews on Scribd

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