Nunavut judge dismisses sexual assault charge against man after court loses jurisdiction over case

A sexual assault charge against a Nunavut man has been dismissed because the paperwork that describes the charge was never submitted during the man’s first court appearance.

As a result, Justice Susan Cooper ruled in a written decision released last week that the court lost jurisdiction of the accused, Damian Qaunaq.

The dismissal follows what’s called an application to dismiss the charge for want of prosecution, heard at the Nunavut Court of Justice in Iqaluit on Sept. 13, 2019.

That’s a request to dismiss a charge because significant legal steps were not taken to move the case forward through the court. When a case is dismissed for a want of prosecution, its proceedings are closed.

Qaunaq was arrested Nov. 21, 2016, for sexual assault. He was released the following day, Nov. 22, 2016, after agreeing to a promise to appear in court and an undertaking, the Feb. 6, 2020, decision from Cooper states.

The decision came to down to the question of what gives the court jurisdiction over an accused, in this case Qaunaq, and if the court had jurisdiction over him in the first place.

“The issue is: What gives the court jurisdiction over an accused: release documents that require an accused to attend court, the laying of an information, or both?” Cooper wrote in her decision.

Information is a formal document that describes the criminal charges against a person and the factual basis for those charges.

Qaunaq appeared in court on Dec. 15, 2016. According to the decision, there was no information before the court on that day.

“In fact, no information had been sworn,” Cooper wrote.

That was the last Qaunaq heard of the matter until Jan. 11, 2019, when he was served with a summons requiring him to appear in court Jan 14, 2019. Information had been sworn before the court on Nov. 7, 2018.

In submissions to the court, defence lawyer Stephanie Boydell argued that jurisdiction was lost when Qaunaq appeared before the court on Dec. 15, 2016 and no information was before the court.

The court would only regain jurisdiction by following the procedure laid out in section 485 of the Criminal Code, Boydell argued. That section says that jurisdiction can be regained by issuing a summons or arrest warrant within three months of jurisdiction having been lost.

In his submissions, Crown lawyer Martin Tooke argued that the court did not gain jurisdiction over Qaunaq prior to Dec. 15, 2016, because no information was sworn.

“The Crown submits that jurisdiction over an accused is gained only when there is both an information sworn and process compelling an accused to attend court,” the decision states.

Cooper noted that the Crown’s position was supported by some case law.

“A court will have jurisdiction over a person when the court has the authority to make an order or judgment against the person. In the context of a criminal case, once an information is sworn, the accused is in jeopardy and is subject to the authority of the court,” Cooper wrote.

Cooper noted that a case called R v. Clark stated the court has no jurisdiction over an accused until an information has been laid before a judge.

But in a Ontario case from 2009 called R. Oliveira, the court ruled that the failure to comply with the court’s timelines results in the loss of jurisdiction over an accused.

“It would be unfair to expect an accused to bring an application to vacate an undertaking because of the prosecution’s failure to lay an information. An accused is entitled to certainty as to what their obligations are to the court,” Cooper wrote.

“In the circumstances of this case, where an accused is on both release documents and an undertaking or recognizance with conditions, I find that the court loses jurisdiction over the person if an information is not sworn at the time of the initial court appearance.”

Cooper wrote that the court may regain jurisdiction by issuing a summons or warrant for the accused within three months of the loss of jurisdiction.

But the failure to do so results in the proceedings being deemed dismissed, Cooper wrote.

“The loss of jurisdiction occurs on the date of the first appearance. The deemed dismissal would be three months from that date. The proceedings having been deemed dismissed, the accused would no longer be bound by his undertaking,” Cooper wrote.

The prosecution of Qaunaq may be restarted with the consent of the attorney general, as outlined in section 485.1 of the Criminal Code, Cooper wrote. That section deals with procedural irregularities in court cases.

“The information against Mr. Qaunaq was deemed dismissed for want of prosecution as of March 15, 2017. The information before the court was not laid with the consent of the attorney general. Accordingly, it is a nullity,” Cooper wrote.

R. v. Qaunaq, 2020 NUCJ 3 by NunatsiaqNews on Scribd