Nunavut court: case alleging illegal turbot fishing to go ahead
Judge says defence responsible delays totalling 27 months
Despite the length of time their case has sat before the Nunavut court, a subsidiary of the Baffin Fisheries Coalition, along with the captain of one of the company’s fishing vessels, will still stand trial for fishing in illegal waters.
That’s according to a written decision, released Dec. 12, from Justice Bonnie Tulloch of the Nunavut Court of Justice.
The trial of Oujukoaq Fisheries Ltd. and its employee, David Dempsey, has twice been scheduled to proceed in an Iqaluit courtroom, most recently from Dec. 5 to Dec. 9, 2016.
The co-accused face a single charge each under the Fisheries Act,, dating to 2012, that alleges illegal turbot fishing in a prohibited area.
But an application from defence lawyers to dismiss those charges due to unreasonable delays, filed in October 2016, cancelled the most recent trial date.
Now, in her decision, Tulloch rejected that application and said the trial should be rescheduled as soon as possible.
“It is a case with far-reaching implications for commercial fishermen in Canada. It is a case that deserves to be decided on its merit,” Tulloch said.
Dempsey and Oujukoaq Fisheries are each charged with fishing in a “closed fishing area” on or around Oct. 20, 2012, a breach of the Fisheries Act, Tulloch said.
In May 2013 the charges were laid and in August 2014 “not guilty” pleas were entered.
But scheduling court proceedings was complicated by the defence’s request for dates that did not interrupt the fishing season.
That means the defence requested dates in either the last or first couple of months of the calendar.
Eventually, a trial date was set for January 2016.
“I want to make clear to defence counsel that we can have an earlier trial date than that. Is your client prepared to waive his [right to be tried within a reasonable time?]” the Nunavut court asked when scheduling the trial.
That right is protected under Canada’s Charter of Rights and Freedoms.
“Yes your honour, both Mr. Dempsey and Oujukoaq Fisheries are prepared to waive,” that right, the defence lawyer answered.
But the trial scheduled for January 2016 was cancelled when prosecutors admitted they were not ready to proceed, Tulloch said.
The trial was rescheduled for Dec. 5, 2016, but two months before that date, defence lawyers filed an application to dismiss the charges because of unreasonable delay.
According to a decision released by the Supreme Court of Canada in July 2016, called R. v, Jordan, cases such as this one must be resolved within 18 months, unless the delays are caused by the defence.
The Supreme Court’s decision aimed to address the “culture of delay” in Canadian courts, Tulloch said.
In total, over 42 months passed from the time the charges were laid and the matter was scheduled to go to trial.
But defence requests for delays, mostly to avoid trial during the fishing season, contributed 25 months to that delay, Tulloch ruled.
That means only 17 months of the delay can be attributed to the court or prosecutors—below the 18-month threshold needed to dismiss the charges, according to R. v. Jordan.
“The record shows a spirit of full cooperation between Crown and defence,” Tulloch said in rejecting the defence’s application to dismiss the charges.
This case has not taken longer than it reasonably should have and the trial should be rescheduled “as soon as possible,” the judge said.
“I must end by saying that it is extremely unfortunate… that valuable time has been lost dealing with this application instead of proceeding with the trial date already set.”