Nunavut judge dismisses assault case, slams RCMP and Crown for negligence

An Iqaluit man accused of aggravated assault has been set free after a judge ruled police and Crown prosecutors bungled the case against him.

Justice Paul Bychok slammed the Crown's office and Nunavut RCMP before he dismissed Lyta Josephee's charges, in a decision released today.

Bychok said both agencies were negligent, in the way the police investigated the alleged assault and in how prosecutors prepared and presented their case.

Potential witness not interviewed

According to Bychok's decision, on Sept. 17, 2015, Iqaluit RCMP Const. Sebastien Ouellette and his partner responded to a report of an assault. They found the complainant outside a home and the police were invited inside, where there were two intoxicated adults and a 12-year-old child. After speaking with the child, Ouellette believed the child had witnessed the incident, but didn't take a statement.

Ouellette went back to the home the next day and spoke with one of the adult witnesses, who said they had little recollection of the incident because they were so drunk, and refused to make a statement.

Josephee appeared in court on the charge in late November.

Police didn't investigate the incident any further until late February 2016, when the Crown asked the RCMP to re-investigate. Ouellette went back and spoke to the two adults again, who said they had been too intoxicated to remember what happened. He asked to speak to the child but was told the child was not available. Ouellette said he'd try again.

Josephee was scheduled to go to trial on March 3. On that day, Crown prosecutor Sarah Argna'naaq – who'd only been given the file a week before – asked for the trial to be adjourned, because she had determined there were potential witnesses who hadn't been interviewed by police, including the sober 12-year-old.

The Crown had already cancelled the complainant's scheduled trip from Pangnirtung to testify, before being granted an adjournment.

'A concerning lack of oversight'

In his ruling, Bychok said there were a number of problems with the case that reveal "a concerning lack of oversight by both agencies."

"Not only did the investigating officer fail to complete his investigation, but the file was processed and forwarded onto the prosecution without any evident internal review," Bychok said.

He added no explanation for this was given by police or the Crown.

"Whatever system may have been in place in September 2015, it failed to catch and correct this obvious deficiency in the investigation."

Bychok noted that both Crown and defence counsels had pointed out that the investigation was obviously incomplete.

"Why, then, was that obvious deficiency not discovered and addressed by the Crown in a timely manner?" Bychok asked, rhetorically.

"In our justice system, the Crown is required by law to assess and evaluate its prospects of conviction at each step in the process, not just one week before the trial. The failure to do so in this case was negligent."

Finally, Bychok criticized the Crown for cancelling the complainant's travel arrangements to testify before actually securing an adjournment. 

"Having failed to secure an adjournment, the Crown has put itself into the following embarrassing position: it had no case to call against the accused." 

Having denied the Crown's request for an adjournment, the judge dismissed the charges against Josephee.

"I am acutely aware that the result of my decision will be the dismissal of a very serious allegation," said Bychok.

But he said the court has a duty to hold police and prosecutors accountable for how they exercise their authority.

"This court cannot be seen to sanction this level of negligence," Bychok said. "To adjourn this case would send a message that authorities may act in any way they please, without consequences."

Agencies to review case; Crown has 60 days to appeal

​While the Public Prosecution Service of Canada wouldn't comment specifically on Bychok's ruling, as per policy, it said it will review the case carefully and make any changes to prosecution practices, if it deems it appropriate.

​When it comes to cancelling the travel arrangements of witnesses who have been subpoenaed, Chief Federal Prosecutor Mariam Bryant said it's not common practice, but it would depend on the circumstances.

​"It's something we will be looking at to learn from and make sure it does not occur the same way again," Bryant said. 

In a statement, the Nunavut RCMP said it "has been made aware of the decision today, and given the findings within the decision, the RCMP will undertake further study of the decision's comments."