Nunavunmi Maligaliuqtiit

NUNAVUT COURT OF JUSTICE

Cour de justice du Nunavut

Citation: R. v. Anugaa, 2018 NUCJ 2

Date: 20180201
Docket: 13-13-32
Registry: Iqaluit

Crown: Her Majesty the Queen

-and-

Accused: Lukasie Anugaa

________________________________________________________________________

Before: The Honourable Mr. Justice Paul Bychok

Counsel (Crown): Barry McLaren

Counsel (Accused): Patrick Bruce

Location Heard: Iqaluit, Nunavut

Date Heard: August 25, 2017, September 7, 2017 and
November 3, 2017
Matters: Canadian Charter of Rights and Freedoms, Part I of the
Constitution Act, 1982, being Schedule B to the Canada
Act 1982 (UK), 1982, c 11, s. 11(b); R v Jordan, [2016] 1
SCR 631, 2016 SCC 27; Change of venue; Voir Dire

REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication)

 2

I. BACKGROUND

[1] This case is about two allegations of indictable historic sexual assault.
It has turned into a case about pre-trial delay.

[2] The accused, Lukasie Anugaa, is charged with two sexual offences.
The offences are alleged to have happened in Sanikiluaq between
May 2, 1977 and May 2, 1978. Mr. Anugaa was charged on an
Information sworn by the police on July 8, 2013. Mr. Anugaa has
elected to be tried by a court composed of a judge and a jury.

[3] At various times, five different jury trial dates have been scheduled.
Sheriffs have served subpoenas on prospective jurors four different
times. Two of the first four trials went ahead, each one of which
ended in a mistrial. The other two did not proceed. As I write this, Mr.
Anugaa’s fifth and latest trial is scheduled to start on January 15,
2018. Over 54 months will have passed between the day Mr. Anugaa
was charged and the anticipated end of his upcoming trial.

[4] The Defence has made a pre-trial application to the Court. The
application is based on section 11(b) of the Canadian Charter of
Rights and Freedoms1 and the Supreme Court of Canada decision in
R v Jordan.2 Defence Counsel, Patrick Bruce, maintains that Mr.
Anugaa’s Charter right to a trial within a reasonable time has been
violated. Therefore, he argues the Court should enter a stay of
proceedings, which would bring the case to an end. The Crown
opposes a stay of proceedings.

[5] The parties are also at odds over where another trial should be held if
I do not grant the stay.

[6] The Crown has brought an application to move the jury trial to a
different community. The Crown Prosecutor, Barry McLaren, argued
that every eligible adult has already likely been summonsed at least
once to serve on the jury. He stated that witnesses testified in open
court during the two jury trials that went ahead. Furthermore, the
accused testified in the first jury trial. “[I]n a small community”, he
continued, “word travels fast”.3 Mr. McLaren also noted that Mr.

1
Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (UK), 1982, c 11, s 11(b) [Charter].
2
R v Jordan, 2016 SCC 27, [2016] 1 SCR 631 [Jordan]. The decision was further recently
affirmed in R v Cody, 2017 SCC 31, 411 DLR (4th) 619.
3
Transcript of Proceedings, 7 September 2017, at 3, lines 24-25.
 3

Anugaa is notorious in the community. He said it would be

“impossible to secure a jury that doesn’t have some prior knowledge
of either the offence [or] the prior proceedings”.4 He said fair trial
interests require a change in venue.

[7] Defence Counsel said the trial should again be held in Sanikiluaq. He
noted that a jury was successfully chosen for one trial. He stated he
believed there have not been any jury trials in Sanikiluaq for at least
two years, so the jury pool is not “overly taxed”.5 He stated the
Crown’s concerns were “somewhat alarmist”.6 He urged the Court to
respect the longstanding tradition of having the jury trial in the
community where the charges arose.

[8] I heard the applications in Iqaluit on August 25 and September 7,

2017. I gave my decision to the parties on November 3, 2017.
However, I delayed releasing the decision until the trial was
completed.

II. ISSUES

[9] The Charter application turns on whether the delay in bringing this
case to trial has been unreasonable. In my respectful view, the delay
in the circumstances of this case has been reasonable.

[10] The change of venue application turns on whether an unbiased jury

pool can be formed in Sanikiluaq. In my respectful view, it is
necessary in the unique circumstances of this case to hold the trial in
a different community.

[11] I shall deal with each issue in turn.

III. LAW

A. The law – section 11(b) of the Charter

[12] In 2016, the Supreme Court in R v Jordan changed the way we

interpret and apply section 11(b) of the Charter.7 This new Jordan

4
Ibid at 9, lines 17-19.
5
Ibid at 15, lines 8-9.
6
Ibid at 17, lines 4-5.
7
Charter, supra note 1, s 11(b).
 4

approach does not account for the exceptional challenges and unique
cultural circumstances in delivering justice to Nunavummiut. I shall
say more about that in a moment.

[13] In Canada, there are two categories of criminal charges. Criminal

charges are either summary or indictable. Each category is dealt with
somewhat differently and each has its own scale of punishments.
The Jordan case treats each category differently when considering
pre-trial delay.

[14] The new law post-Jordan may be summarized as follows. The Court
first determines the length of total pre-trial delay.8 The judge must
then subtract delay either waived or caused solely or directly by the
Defence.9 If the remaining net delay is more than “30 months for
cases in the superior court (or cases tried in the provincial court after
a preliminary inquiry)”,10 the delay is presumed to be unreasonable.
In Nunavut, the remaining delay of more than 30 months for cases
proceeding by an Indictment or after a preliminary inquiry is presumed
unreasonable. The magic number for summary charges in provincial
or territorial court is 18 months.11 Past the 18 or 30 months marks, as
in this case, it is up to the Crown to justify that delay.12

[15] Apart from Defence delay, the majority in Jordan decreed only one
other category which may be used to justify pre-trial delay:
exceptional circumstances. A circumstance is said to be exceptional if
it was reasonably unforeseeable or unavoidable and the Crown could
not reasonably remedy the resulting delay once the circumstance
arose.13 Two examples of exceptional circumstances listed in Jordan
are “discrete events” and cases which are “particularly complex”.14

[16] The delay caused by “discrete events” can be deducted from the
remaining net delay. Where the case is particularly complex, no
deductions are needed—the Court instead will consider if the
8
Jordan, supra note 2 at para 47.
9
Ibid at paras 61-65.
10
Ibid at para 105.
11
Ibid at para 105. Also see the discussion about the determination of appropriate ceilings for
cases tried in the Nunavut Court of Justice in R v Dempsey & Oujukoaq Fisheries Ltd, 2016
NUCJ 32 at paras 17-30, 2016 CarswellNun 35. The Nunavut Court of Justice is Canada’s only
unified court. In other words, it combines the superior and territorial courts which are separate
elsewhere. Jordan’s provincial-superior court distinction highlights that Jordan does not translate
seamlessly in Nunavut.
12
Jordan, ibid.
13
Ibid at para 69.
14
Ibid at para 71.
 5

complexity justifies the time spent on the case.15 Complex cases can
be very time consuming.

[17] There is also a transitional period to account for reasonable reliance

on the law as it previously existed.16

[18] Central to my analysis will be the statement in Jordan that the list of
exceptional circumstances is not closed.17

B. The law – trial venue

[19] The Criminal Code permits the Crown or Defence to apply for a
change in the venue or location of a trial to another territorial
division.18 The location of a trial may be moved, under the Criminal
Code, if it “appears expedient to the ends of justice”.19 However, that
section does not apply to the Nunavut Court of Justice because
Nunavut is not divided into separate territorial divisions. There is a
gap in the legislation.

[20] Access to justice is a fundamental Canadian concern while our courts

must be open to public scrutiny (barring exceptional circumstances).
In Nunavut, this approach is codified in rule 37(1) of our Criminal
Rules of Court, which provides that trials shall be held in the
community where the offence is alleged to have happened “unless the
convenience of the parties otherwise requires”.20 Rule 37(6) states
further that nothing limits the discretion of the Court to determine
where a trial should be held. This rule reflects the longstanding
history and practice of our Court.21

[21] The practice has developed here whereby a party who seeks to move
a trial from one community to another must apply to the Court. In
cases involving jury trials, a written application must be filed with the
Court and served on the opposing party. In non-jury cases, the
request must be addressed in open court.

15
Ibid at paras 75-76, 80.
16
Ibid at para 96.
17
Ibid at para 71.
18
Criminal Code, RSC, 1985, c C-46, s 599 [Criminal Code].
19
Ibid, s 599(1)(a).
20
Criminal Rules of the Supreme Court of the Northwest Territories, SI98-78, r 37(1) [Criminal
Rules of Court].
21
See e.g. R v Arnakallak, 2013 NUCJ 29, 2013 CarswellNun 43 [Arnakallak].
 6

[22] As Justice Sharkey outlined in R v Arnakallak, this Court has never

arbitrarily moved trials from one community to another.22 The Court
has adopted a principled approach by attempting to bring justice to
everyone’s door according to the intent and spirit of rule 37(1).

[23] As I have mentioned, the Criminal Code section 599 test does not
apply to Nunavut. That said, I see no reason in principle why the
same test should not apply here. This is consistent with the
Northwest Territories, where the Northwest Territories Supreme Court
has adopted the section 599 of the Criminal Code test in relation to
their rule 37.23 Therefore, in my view, the test I must apply in this case
is whether a change in trial venue appears to be expedient to the
ends of justice.24

IV. ANALYSIS

A. The administration of justice in Nunavut in the context of Jordan

[24] At the outset, I must say a few words about the unique cultural
circumstances and exceptional challenges in delivering justice to
Nunavummiut. These challenges pose a particularly difficult problem
for trial judges who must apply Jordan delay rules in Nunavut.

[25] In Canada, criminal law is the constitutional responsibility of the

federal Parliament. Each territory and province bears the
responsibility and costs of its administration.

[26] Nunavut sprawls over the northern two-thirds of Canada’s vast

landmass. Our 38,000 people live in 25 remote communities
scattered over Nunavut’s 2,093,190 square kilometres.25 Since the
days of Justice Jack Sissons, we have striven to make justice

22
Arnakallak, supra note 21 at para 43.
23
See e.g. R v Beaverho, 2009 NWTSC 21 at para 61, 2010 CarswellNWT 58; R v Bonnetrouge,
2010 NWTSC 60 at para 13, 2010 CarswellNWT 58; R v Blackduck, 2015 NWTSC 12 at 27, 2015
CarswellNWT 20. Nunavut inherited its Criminal Rules of Court on division from the Northwest
Territories.
24
Criminal Code, supra note 18, s 599(1)(a).
25
Statistics Canada, “Land and freshwater area, by province and territory”, online:
<www.statcan.gc.ca/tables-tableaux/sum-som/101/cst01/phys01-eng.htm>.
 7

accessible to everyone, no matter where they live.26

[27] The Nunavut Court of Justice is based in Iqaluit and it travels regularly
to each one of the other 24 far flung communities. Distances between
our communities are immense: Kugluktuk is 3,392 kilometres from
Iqaluit. Arctic Bay is 1,229 kilometres from Iqaluit. To get to five of
our communities, the Court must stay overnight in Yellowknife. To get
to Sanikiluaq, we must travel via Montreal. Flight times alone to
western Kitikmeot can consume up to seven hours. Not surprisingly,
the Court’s travel budget alone for 2016-17 was $2,486,000.27

[28] Anyone who lives north of 60 knows that these statistics tell only a
small part of the story. The harsh arctic climate is unforgiving.
Planes go “mechanical”28 and flights are delayed or cancelled. The
September 2017 circuit to Kimmirut was cancelled because of a
blizzard. Here in Iqaluit, we had our first near-blizzard of the season
on September 30. Court days in Iqaluit were cancelled during two
consecutive weeks in November when we had two more storms.
More Iqaluit court time was lost in December due to stormy weather.
The busy November court circuit in Rankin Inlet had to be cancelled
due to a blizzard; high winds prevented a Judge from arriving there
until Wednesday afternoon of the December circuit. Another recent
blizzard prevented the court party from travelling to Pangnirtung.
Every year, significant court time is lost due to weather.

[29] The cancellation of a Nunavut court circuit has an impact out of all
proportion to a similar cancellation in the south. In Ottawa, for
example, there are regular and frequent court sittings. A court closure
there entails only a minor inconvenience and delay. Not so in
Nunavut. Nine Nunavut communities including Sanikiluaq see court
circuits three times a year. One smaller community, Kugaaruk, only
sees the Court twice a year. A cancelled circuit in Kugaaruk means
the possibility of no court in the community for an entire year (unless a
jury trial is held there).

[30] To continue with the Kugaaruk example, a person may, and

sometimes is, charged with an offence shortly after the Court leaves
26
Justice Sissons was the first judge appointed to the Territorial Court of the Northwest
Territories when it was instituted in July 1955. He served until 1965. We honour his legacy and
follow his example.
27
Nunavut, Department of Finance, Main Estimates 2016-2017, February 2016, ISBN # 978-1-
55325-309-9 (Iqaluit: Department of Finance) at E-7, online:
<www.gov.nu.ca/sites/default/files/files/Finance/Budgets/2016-17_main_estimates_en.pdf>.
28
This is north-speak for mechanical issues which prevent a plane from leaving on schedule.
 8

town. In fact, that situation happened recently. That accused person

will have to wait six months before sitting down with a lawyer visiting
for the circuit, assuming the subsequent circuit can proceed as
scheduled. Unlike Ottawa, no lawyers live in Kugaaruk. Nor are
there any lawyers living in 21 other communities. Persons arrested
by the police get a brief telephone call with Duty Counsel based either
in Cambridge Bay, Iqaluit or Rankin Inlet.

[31] In my respectful view, the Kugaaruk example illustrates that all justice
stakeholders, including this Court, must find better ways of serving
Nunavut’s far-flung populace. Several years ago, this Court started
holding court by telephone to help move along matters in the Kivalliq
and Kitikmeot regions. The time may have come to increase the use
of telephone and videoconferencing considering Jordan.

[32] That said, Jordan does not account for the impact of Nunavut’s
tremendous infrastructure deficit. Communities which see regular
sittings of the Court two or three times a year will continue to see that
level of service despite the new Jordan rules.

[33] Nunavut’s infrastructure needs are truly staggering. There is only so

much taxpayer money available to the Government of Nunavut. And
the available amount of funds is woefully inadequate. Alcohol abuse
is tearing apart the fabric of our society. It 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. Too often, we hear about offenders dropping out of
the program after being sent south for treatment because they find it
too hard to succeed so far from home. Our elderly in need of care are
routinely sent south, where they are isolated and surrounded by an
unfamiliar culture. Adults subject to public guardianship orders – our
most vulnerable citizens – are routinely shipped south. Our federal
inmates continue to be sent south. Few communities have safe
houses for families in crisis. Chronic overcrowding continues. Food
insecurity is widespread. Deficits in broadband communications
reinforce isolation and impede the adequate delivery of remote health
care and other social services.29

[34] There is only one courthouse in Nunavut and it is located in Iqaluit.

Outside Iqaluit, our Court sits in school gyms, community halls and

29
See e.g. Conference Board of Canada, “Social Outcomes in the Territories” (July 2017), online:
<www.conferenceboard.ca/hcp/provincial/society/territories.aspx>.
 9

even council chambers. Many of the community halls lack functioning

washrooms. Invariably every year, heating systems fail in a
community hall during a circuit, leaving court participants to conduct
court in their winter parkas and mittens.

[35] Realistically, there is very little, if any, extra money to be found in

Nunavut for improving the frequency of court sittings. Communities
which see the Court twice or three times a year will continue to see
that level of service despite the new Jordan rules. We must make
improvements with the resources available to us.

[36] Jordan fails, for example, to respect our longstanding unwritten rule
that each litigant, barring negligence, is entitled to one adjournment.30
This rule reflects the reality that we are all in this together. Accused
persons, complainants and witnesses often must travel south for
medical treatments which are unavailable in Nunavut. Other justice
participants have been medevaced south for emergency treatment
and were not available to testify during the court circuit. Others have
gone south as medical escorts. Cases in the Nunavut Court of
Justice are regularly adjourned for these reasons.

[37] In my respectful view, Jordan is also problematic for another reason: it

does not acknowledge or reflect the central importance of Inuit
Qaujimajatuqangit.

[38] Nunavut’s communities are small and very closely knit. Deaths and
suicides touch everyone. Circuits sometimes are cancelled out of
respect for the grieving. The Nunavut Court of Justice stands down for
burials and funerals. Sentencing hearings are delayed, permitting
offenders to participate in seasonal hunts.

[39] In my respectful view, it is not enough to say that these events are the
type of “discrete events” contemplated by Jordan. Rather, the way we
deal with these events reflects the very ethos of how we approach the
delivery of justice in Nunavut. To apply Jordan justly in Nunavut,
there must be a third subcategory of exceptional circumstance which
reflects the territory’s unique cultural circumstances.

[40] Respectfully, Jordan—as I have just said—does not account for the
need to respect and incorporate Inuit culture and experience in the

30
See e.g. R v EA, 2017 NUCJ 16 at para 6, 2017 CarswellNun 23; R v Dempsey & Oujukoaq
Fisheries Ltd, 2016 NUCJ 32 at para 73, 2016 CarswellNun 35.
 10

delivery of justice to Nunavummiut. In my lifetime, Inuit were forced

out of their traditional way of life. Inuit were moved, sometimes
forcibly, into artificial settled communities. Inuit society was
traumatized by this re-settlement. This trauma was magnified by the
experience and legacy of residential schools. We know only too well
that this trauma is inter-generational. Isolation, joblessness and
despair have driven Nunavut to record the highest suicide rate in the
country.31

[41] In 2011, 86.3 per cent of Nunavummiut self-identified as Aboriginal.32

In 2012, 50.9 per cent of Nunavummiut identified that they spoke their
primary Aboriginal language “very well or relatively well”.33 Inuit
culture lives on and thrives in most areas despite the pressures of
recent resettlement and technological revolution. For all these
reasons, the Nunavut Court of Justice is not just another court; it is
Canada’s principal Gladue court.34

[42] Gladue requires the Nunavut Court of Justice to account for the
unique circumstances of Inuit, their culture and history. This is only
right. As I have said before, justice, if it is to approach true justice,
must be rooted in the community it serves.35 We recognize that Inuit
social governance continues in parallel to the application of pan-
Canadian criminal law. Therefore, we strive to incorporate the
precepts of Inuit Qaujimajatuqangit into our judgments and all our
practices.

[43] This is a fact which applies to the present case. The Nunavut Court
of Justice avoids scheduling jury trials during the extremely short
arctic summers. This is a time when many Nunavummiut return to the
land. The cultural and personal importance of this cyclical, seasonal
reality cannot be overstated. The practices of our Court must reflect
the rhythm and cultural practices of the society it serves.

31
Statistics Canada, “Leading causes of death, total population, by sex, Canada, provinces and
territories (age standardization using 2011 population)”, CANSIM Table 102-0564 (last modified
16 November 2017).
32
Statistics Canada, “National Household Survey indicator profile, Canada, provinces, territories,
health regions (2014 boundaries) and peer groups”, CANSIM Table 109-0401 (last modified 17
March 2015).
33
Statistics Canada, “Aboriginal peoples survey, self-rated ability to speak and understand an
Aboriginal language, by Aboriginal identity, age group and sex, population aged 6 years and over,
Canada, provinces and territories”, CANSIM Table 576-0009 (last modified 1 April 2016).
34
I have spoken at length about the Supreme Court of Canada case R v Gladue, [1999] 1 SCR
688, 1999 CanLII 679 [Gladue], in the Nunavut context. See, for example, R v Cooper-Flaherty,
2017 NUCJ 11 at paras 23-26, 2017 CarswellNun 15.
35
R v Mikijuk, 2017 NUCJ 2 at para 25, 2017 CarswellNun 3.
 11

[44] Two of the adjournments in this case involved scheduling the jury trial
over to the autumn, instead of the summer months, to respect this
tradition.36 But, where does that fit in a one-size-fits-all Jordan
analysis? In my respectful view, it does not; and that fact highlights
the weakness and dangers inherent in judges attempting to take on
the role of Parliament.37 I expect this Court will continue the no-
summer-jury-trial practice into the future notwithstanding Jordan.

[45] In my view, it is not appropriate to count this type of Nunavut-specific

delay as Defence waiver because the Court has not made the
possibility of summer jury trials an available option. This is significant
because apart from deductible Defence delay, Jordan only
enumerates two subcategories which permit delay: exceptional
discrete circumstances and exceptional case complexity.

[46] How, then, does one fit the square Jordan peg into the round Nunavut
hole while doing justice to Nunavummiut? This is a question of great
importance. I do not believe the majority in Jordan intended trial
judges to re-assert past colonialist attitudes and practices which ran
roughshod over the Inuit. We live in a post Truth and Reconciliation
Canada. The National Inquiry into Missing and Murdered Indigenous

36
See e.g. R v Oolamik, 2012 NUCJ 21 at paras 103-105, 2012 CarswellNun 30.
37
In Jordan, Justice Cromwell—writing for the four judges in the minority, including then Chief
Justice McLaughlin—stated the following concerning the majority decision: “I am not convinced
that this Court should impose the scheme proposed by my colleagues. It diminishes Charter
rights. It casts aside three decades of the Court’s jurisprudence when no participant in the appeal
called for such a wholesale change – and this in the context of a case in which all of us agree that
the result is clear under the existing jurisprudence. It has not been the subject of adversarial
scrutiny or debate. The record does not support the particular ceilings selected. Nor, so far as I
can tell, does the Court-conducted examination of reported cases. And it risks repetition of the
Askov aftermath in which thousands of prosecutions were judicially stayed. In short, the
proposed scheme is, in my respectful view, wrong in principle and unwise in practice”. Jordan,
supra note 2 at para 302. The late Justice Antonin Scalia of the United States Supreme Court had
this to say about the proper vocation of a Judge: “The judge as legislator has also not been good
for democracy. When the vocation of a judge is reduced to simply selecting the best rule,
remarkable power is placed in the hands of a few persons who are barely accountable for their
decisions. In my country, most judges are given life tenure, and it is almost impossible to get a
judge impeached. This was originally designed to give judges some insulation from the public
indignation that often accompanies unpopular decisions. But when the vocation of a judge is
more akin to that of a lawmaker, such insulation seems remarkably inapt. Moreover, there is no
reason to suspect that the justices on my court, for example, are particularly good representatives
of the views that a majority of Americans hold. We all live in Washington, D.C., for goodness’
sake – we are totally out of touch with America! And we are all lawyers. Since when would a
majority of Americans think that a group of nine lawyers from elite law schools should be
entrusted with deciding the “best rules” for all our countrymen to live by?” Christopher J. Scalia,
Scalia Speaks: Reflections on Law, Faith, and Life Well Lived (New York: Crown Forum, 2017) at
178-179.
 12

Women and Girls is ongoing. The Nunavut Court of Justice owes a

constitutional duty to Nunavummiut to respect the spirit as well as the
letter of the Nunavut Land Claims Agreement.38

[47] The Supreme Court is the highest court in the land. Therefore, I must
apply Jordan. But, I must do so in a way that accounts for the unique
cultural circumstances and exceptional challenges in delivering justice
to Nunavummiut. In my respectful view, a simple pro forma
application of Jordan is wrong in principle.

[48] I do agree with the Jordan majority that the delay “analysis must
always be contextual.”39 In my respectful view, in Nunavut, the
Jordan subcategories of exceptional circumstances must be given a
broad and liberal interpretation grounded in reality. This view can be
supported by the statement of the majority in Jordan that the list of
exceptional circumstances is not closed.40 The unique cultural
circumstances and exceptional challenges found in Nunavut, then,
constitute a third Jordan subcategory of “exceptional” circumstance.

B. “A culture of delay and complacency”

[49] The majority in Jordan cited a “culture of delay and complacency” in

the justice system as a rational for their decision to change the law
concerning delay.41 Whatever may be said about the situation in
southern Canada, and I am not qualified to have an opinion, this
concern does not apply to the Nunavut Court of Justice.

[50] Despite its many challenges, and despite carrying more criminal
charges per capita than anywhere else, this Court had the second
lowest number of adult criminal matters which lasted more than one
year in both 2014-2015 and 2015-2016.42 In 2015 and 2016, Nunavut
had one of the lowest case processing times in the country.43
38
Agreement between the Inuit of the Nunavut Settlement Area and Her Majesty the Queen in
Right of Canada (Ottawa: Published under the joint authority of the Tungavik and the Hon Tom
Siddon, Minister of Indian Affairs and Northern Development, 1993), online:
<publications.gc.ca/site/eng/423740/publication.html>.
39
Jordan, supra note 2 at para 98.
40
Ibid at para 71.
41
Ibid at para 29.
42
Only 61 in 2014-2015 and 84 in 2015-2016, second only to Prince Edward Island. Statistics
Canada, “Adult criminal courts, cases by length of elapsed time, annual”, CANSIM Table 252-
0054 (last modified 22 September 2017).
43
In 2014-2015, the median time was only 71 days for adults and 72 days for youth, second and
fifth lowest median case processing times in Canada. In 2015-2016, the median time was again
 13

Therefore, I am confident the recognition of a new third Jordan

subcategory in Nunavut will not result in a greater tolerance for delay.

C. How I applied Jordan to this case

[51] One supposed advantage of the new Jordan approach is that judges
no longer need to engage in “micro-counting”.44 Judges are now to
evaluate delay without a close examination of the reasons for each
adjournment. There were 31 appearances and 30 adjournments in
this case.

[52] At the August 25 hearing, counsel painstakingly referred the Court to

the transcript of each adjournment. Counsel micro-counted each
appearance and attributed fault for the resulting delay. However, I will
not micro-count each of the 31 appearances. I shall not refer in this
decision to each adjournment. Nor will I lay blame for the delays in
bringing this case to trial.

[53] The lawyers on each side have tried their best to move this case
along. I agree with Mr. McLaren that Nunavut has a small and
collegial Bar. I also agree with him that one practical effect of Jordan
has been to poison somewhat that collegiality. I agree with the
Prosecutor’s description at the August 25 hearing of one practical
impact of Jordan: “Jordan has now asked the parties to criminal
litigation to engage in finger pointing … in a sense whose fault” is the
delay?45 Mr. McLaren said he was unhappy at having to point a finger
at his Defence colleagues on the other side of the courtroom. In my
respectful view, this is a further unhappy consequence, albeit
unintended, of the majority decision in Jordan.

[54] I shall only reference those significant delays which bring the overall
delay below the magic Jordan 30-month ceiling for these two
indictable criminal charges.

71 days for adults and 93 days for youth, once again second and fifth lowest median case
processing times in Canada. Statistics Canada, “Adult criminal courts, cases by median elapsed
time in days, annual”, CANSIM Table 252-0055 (last modified 22 September 2017); Statistics
Canada, “Youth courts, cases by median elapsed time in days, annual”, CANSIM Table 252-0066
(last modified 22 September 2017).
44
Jordan, supra note 2 at para 37.
45
Transcript of Proceedings, 25 August 2017, at 80, line 9.
 14

(i.) Appearances and adjournments

C.i.1. From the swearing of the Information to first appearance

[55] The police swore the Information on July 8, 2013. The Court did not
travel to Sanikiluaq on its next circuit until September 30, 2013. The
accused appeared in court that day. I attribute that two months and
22 days delay to the new third category of Jordan exceptional
circumstances faced by the Court in delivering justice to
Nunavummiut.

C.i.2. The accused speaks to the community over local radio, then
fires his lawyer

[56] The accused’s jury trial was scheduled for October 26, 2015. In the
meantime, the accused spoke to the community about this case over
local radio. As a result, the Crown applied on November 2, 2015, to
challenge prospective jurors for cause, and that hearing was
scheduled for November 27, 2015. December 14, 2015, was
reserved as the jury trial date. On November 25, 2015, Mr. Anugaa’s
lawyer told the Court that Mr. Anugaa did not want a trial during the
Christmas period. Mr. Anugaa also told his lawyer to tell the Court he
was ill. The next day, November 26, 2015, Mr. Anugaa told the Court
he had fired his lawyer.

[57] On November 30, 2015, the Court rescheduled the jury trial to allow
the new Defence Counsel time to prepare. Since the Court does not
schedule jury trials during the summer months, the Court reserved
September 26, 2016 for the start of the trial. I will not micro-count
each day of delay. I attribute the ensuing 11 months of deductible
delay to the accused whose actions – in speaking to the community
and firing his lawyer – were not taken legitimately to respond to the
charges and could not have been foreseen or remedied by the Crown.

C.i.3. The first trial ends in a mistrial over a disputed legal issue

[58] Mr. Anugaa’s jury trial started in Sanikiluaq on September 26, 2016.
Part way through the trial, on September 28, the Trial Judge declared
a mistrial. After some administrative appearances, the Court set a
new jury trial date: December 19, 2016 in Sanikiluaq.
 15

[59] In my view, the mistrial was not the fault of either the Crown or the
Defence. The mistrial could not have been foreseen or remedied by
the Crown. I attribute the ensuing two months and about 21 days of
delay as a discrete exceptional Jordan circumstance.

[60] This was a very short delay in all the circumstances. It reflects the fact
that there is no culture of complacency in the Nunavut Court of
Justice.

C.i.4. The second trial ends in a mistrial when the accused raises a
mid-trial objection concerning the jury

[61] Mr. Anugaa’s next jury trial started in Sanikiluaq on December 19,
2016. In the middle of the trial, Mr. Anugaa’s lawyer told the Court
that three members of the jury previously had been complainants in
cases against the accused. At a minimum, Mr. Anugaa ought to have
alerted his lawyer and the Court to this situation during jury selection.
This late disclosure triggered a mistrial. There followed several
administrative appearances and a Jordan application was scheduled
for June 9, 2017.

[62] This delay flowed directly from the actions of the accused – waiting
until mid-trial to bring forward his concern about the jury – which
caused the mistrial. These actions were not legitimately taken to
respond to the charges. I attribute the ensuing five months and about
21 days delay as deductible Defence delay triggered directly by the
accused.

[63] If my analysis is incorrect, I would then attribute and justify the delay
as a discrete exceptional circumstance. Again, this event could not
have been foreseen or remedied by the Crown.46

C.i.5. The accused refuses an early trial date in Iqaluit

[64] The Jordan application did not proceed on June 9, 2017. On June 29,
2017, the Court offered to hold a jury trial in Iqaluit on September 25,
2017. Mr. Anugaa refused this date because he said he wanted to be
tried in Sanikiluaq. The Court then scheduled the jury trial for January

46
The law places very strict limits on the types of inquiries the Crown may make of prospective
jurors.
 16

15, 2018, with the location of the trial to be determined by this

application, which was heard on September 7, 2017. I attribute the
ensuing deductible delay of six months and about 17 days (from June
29, 2017 to January 15, 2018) to the accused for refusing the
September 2017 date.

[65] In the event I am wrong in this analysis, the delay in scheduling the
jury trial in this remote community is another example of the
exceptional challenges and unique cultural circumstances faced by
the Court, the new third Jordan exceptional category.

C.i.6. Delay calculation

[66] I find the above-noted deductible delays totaled approximately 28

months and 20 days. Deductible Defence delay alone totaled
approximately 23 months and eight days. I subtract Defence delay
from the total 54 months and 11 days total delay. This calculation
results in net delay of approximately 31 months and three days. After
further subtracting exceptional circumstance delay of approximately
five months and 12 days, the remaining net delay is approximately 25
months and 22 days. This figure is well under the magic Jordan 30-
month limit.

[67] I further find that the Defence failed to prove that the net delay was
unreasonable even though it fell below the 30-month ceiling.47

D. Where should the trial be held?

[68] I turn now to the second application concerning where the trial will be
held.

[69] Despite its enormous size, Nunavut is a single jurisdiction. As much

as possible, the Nunavut Court of Justice tries cases in the
communities in which they arise. We believe justice must be
accessible to all.

47
Per Jordan, where delay falls below the ceiling, the Defence may still establish
unreasonableness by proving the following: (1) “it took meaningful steps that demonstrate a
sustained effort to expedite the proceedings, and (2) the case took markedly longer than it
reasonably should have.” Jordan, supra note 2 at para 82.
 17

[70] However, from time to time, the interests of justice may require a jury
trial to be moved to a different community. This is one of those cases.

[71] In coming to this decision, I have considered the following factors:

• Sanikiluaq is a community made up of only 882

people48 and it has a limited pool of potential jurors;

• The Court has summoned potential jurors no less

than four times to try this case;

• Two trials started as scheduled and witnesses

testified;

• Mr. Anugaa testified in open court during the first of

those trials;

• Mr. Anugaa spoke to the community about the case

over the local radio; and

• Mr. Anugaa is notorious in the community.

[72] In my view, it would be highly unlikely to secure a Sanikiluaq jury with

no knowledge of the case and its history before the Court. In my
view, and at a minimum, Mr. Anugaa was extremely irresponsible in
speaking to the community over the radio when he knew he had
elected to be tried by a jury. He tainted the judicial process that day,
irredeemably in my view.

V. CONCLUSION

A. Charter section 11(b)

[73] Therefore, I rule that the 25 months and 22 days net delay in bringing
this case to trial has been reasonable in all the circumstances. The
delivery of justice in Nunavut poses unique cultural and unavoidable
challenges in circumstances found nowhere else in Canada. The

48
Statistics Canada, “Sanikiluaq, HAM [Census subdivision], Nunavut and Nunavut [Territory]
(table)” Census Profile, 2016 Census, Statistics Canada Catalogue no. 98-316-X2016001 (29
November 2017), online: <www12.statcan.gc.ca/census-recensement/2016/dp-
pd/prof/index.cfm?Lang=E>.
 18

Defence application fails and this case shall proceed to trial in

January 2018.

B. Trial venue

[74] Mr. Anugaa is entitled to a jury of his peers; he is not entitled to a jury
of his neighbours. It is necessary in the interests of justice to hold this
jury trial in another community. The closest major centre is Iqaluit.
The jury trial shall be held at the Nunavut Justice Centre in Iqaluit
starting on January 15, 2018.

Dated at the City of Iqaluit this 1st day of February 2018

___________________
Justice P. Bychok
Nunavut Court of Justice