Iqaluit lawyer appeals contempt of court ruling, calls it ‘miscarriage of justice’

Although she was acquitted, Crown lawyer Emma Baasch argues judgment has put her in ‘legal jeopardy’ before Nunavut Law Society

Iqaluit Crown lawyer Emma Baasch says a judgment acquitting her of contempt of court cries “conviction” in tone and substance and should be set aside. (File photo)

By Randi Beers

An Iqaluit Crown lawyer acquitted of contempt of court earlier this year has filed an appeal, asking for the judgment to be voided and calling the case a miscarriage of justice.

Emma Baasch and RCMP Cpl. Andrew Kerstens were cited by Judge Paul Bychok for contempt of court in the arrest of a man at the Iqaluit courthouse last year.

Robert Joseph Campbell was set to be tried for assault causing bodily harm July 13, but was arrested that morning for allegedly interfering with a witness.

Kerstens argued it was in the public interest to arrest Campbell. Bychok disagreed, saying the arrest interfered with Campbell’s right to attend his trial and was an insult to the integrity of the Nunavut Court of Justice.

Bychok acquitted Kerstens and Baasch on Jan. 6, saying they committed acts that amount to contempt of court, but did not intend to “bring public disdain” upon the court.

“While the judgment technically results in acquittal, in tone and substance it cries ‘conviction,'” states Baasch’s factum — a legal document that outlines her appeal.

Kitikmeot Community Futures Inc., Job Opportunity – Executive Director

Baasch was personally admonished in the last section of Bychok’s decision for breaching her “ethical duty of candour” to the court. Bychok stated Baasch, as an officer of the court, should have been open about the circumstances of Campbell’s arrest and her involvement in it.

“Ms. Baasch, I am disappointed that nowhere in your affidavit or in your lawyer’s pleadings do you recognize that you failed in your ethical duties to the court,” Bychok said.

In her appeal, filed Jan. 13, Baasch argues Bychok made several legal errors.

She argues her actions did not amount to contempt of court because she simply gave Kerstens legal advice after it came to light that a witness felt threatened by Campbell, and that she had good reason to not share details with Bychok that morning.

“Crown counsel is under a positive duty not to disclose to the court evidence of the accused’s bad character, except to the extent it may be warranted in law,” her factum states.

“Disclosing an uncharged offence to a trial judge is highly likely to be prejudicial to an accused’s fair trial rights, or at least give the appearance of unfairness.”

Online survey on cannabis for University of Waterloo

Baasch also alleges the court refused to provide her the details of why she was cited for contempt of court, that Bychok wrote his judgment before her hearing on Dec. 14, and that the court should have deferred the case to another judge.

“The conduct of the hearing, which culminated in the reading of a pre-written judgment, suggests that the matter had been pre-judged,” states Baasch’s factum.

“Where there is no urgency, the Canadian Judicial Council has urged trial judges to defer the hearing to another judge. Given the evidence of pre-judgment, that ought to have occurred here.”

Baasch wants Bychok’s entire judgment “set aside” — or rendered void — and wants the Nunavut Court of Justice to declare “no acts constituting contempt of court occurred in this case.”

Calling the case a “miscarriage of justice,” Baasch’s factum states Bychok’s judgment leaves her in a position where she has been found to have committed professional misconduct. It states she must now present herself to the Nunavut Law Society and possibly face disciplinary proceedings and sanctions.

Baasch declined to comment for this story. Nunatsiaq News has also reached out to the Nunavut Law Society but did not immediately receive comment.

“As a lawyer, for whom reputation is everything, her legal jeopardy is now at least as great as facing a charge of contempt,” states the factum.

This case is an unusual one, say Crown lawyer Mark Covan and Baasch’s lawyer, Robert Frater.

“It is an appeal even though there was an acquittal,” Covan said in an email to Nunatsiaq News.

“And this is one of the issues that the court must determine: can an appeal be pursued [in these] circumstances?”

Cory Giordano is the lawyer appointed to consider this legal question and, according to a document he filed with the Nunavut Court of Justice, his answer will be no, there is no jurisdiction to appeal an “admonishment” or “severe reprimand” in an acquittal.

Frater, Covan and Kersten’s lawyer, Robb Beeman, will all ask that the appeal be allowed, according to court documents.

The appeal is scheduled to be heard May 9.


Share This Story

(6) Comments:

  1. Posted by mR TUNIK on

    Jerry! , jerry! , Jerry!

  2. Posted by Nunavut Courts Have Become A Joke on

    How many wasted tax dollars has Bychok been responsible for? This kind of power tripping would have never happened in the era of Kilpatrick or Browne.

    • Posted by John K on

      “Wasted money”

      The legal system we use is called a “Common Law” system. Instead of EVERYTHING being firmly codified and black and white, as it were, our system can change and evolve over time. Judicial independence and the appeals that often arise from it are integral in this process.

      We’re better off for having mechanisms like this in place.

      Government isn’t a family or business so we should stop expecting it to budget like one. In the last two decades the only thing that austerity has helped is privatization efforts like the one going on in Ontario.

  3. Posted by John Smith on

    This judge honestly believes that a trial takes precedence over the integrity and safety of a witness.

    Perhaps someone should inform the learned judge that trials with compromised witnesses aren’t very reliable. And in a small place like Nunavut, it’s very easy for witnesses to feel that intimidation.

    For someone who has been in Nunavut so long, perhaps Mr. Chief Justice should reconsider whether or not the court exists in service to the people, or vice versa.

    • Posted by John K on

      I’m not sure what Chief Justice Sharkey has to do with Justice Bychok’s decisions.

  4. Posted by John WP Murphy on

    Keyboard legal experts, who apparently have a personal vengeance against a specific judge, obviously have no conception of the law.

    I wonder if they have appeared before this judge before?


Comments are closed.