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| John L. Hill |
However, the reasons must also be directed to a larger audience — the public. The Supreme Court of Canada recognized that when it handed down its decision in R. v. Sheppard, 2002 SCC 26. It is undoubtedly the case that adequate reasons are essential for proper appellate review (Andrews v. Anslow, 2014 BCSC 2080). However, should a court be aware that the necessity of giving reasons extends beyond the parties involved?
In August 2024, Justice Jack Watson of the Alberta Court of Appeal, who also sits on the Nunavut Court of Appeal, decided on Sam Arreak’s application for judicial interim release pending appeal. The case was heard at a video conference with the judge sitting in Edmonton. On Aug. 9, 2024, the decision was made to order the appellant’s release (R. v. Arreak, 2024 NUCA 8).
The bulk of the judgment deals with logistical problems that the judge resolved during his judgment. For example, Rule 24 of the Rules of Court provided that applications for judicial interim release must not be brought until certain preconditions had been met.
Since the judge was not physically present with counsel, he was content on being advised by the Registrar and submissions of counsel that he had jurisdiction to proceed. A second logistical problem was when it became worrisome that without a signed order for release, the person released may face issues with local authorities unless one can prove an order exists.
Although Justice Watson’s order could be sent quickly, the judgment authorized alternatives for expediting the issuance of the Order. Another judge could sign, or the registrar on the authority of, in this case, Justice Watson could endorse the Order.
These technical issues comprised the bulk of the 15-paragraph judgment. The facts before the court must be surmised from a few sentences in the Reasons for Decision. The case was not high profile. Sam Arreak’s name cannot be found in any of the 300 Canadian newspapers on file with the Toronto Public Library. Sam Arreak had been convicted, but the crime and forum, trial by judge alone or trial by jury, are not disclosed. We must assume that Arreak is from Pond Inlet in Nunavut because of concern that the constable in that area might arrest Arreak if he is released without proper paperwork.
We are unaware of whether the crime involved victims and if violence was involved. A 2017 research brief by the Correctional Service of Canada found that incarcerated Inuit in Canada’s penitentiaries were highly criminalized, with 88 per cent having a previous offence as an adult. Most of these were violent offences, including 41.5 per cent for previous sexual offences. Regarding their current offence, 47 per cent had a conviction that included a sexual component and 29 per cent were for homicide. A further indication that victims were involved is suggested by the non-publication order attached to Justice Watson’s judgment.
It is also unclear if Arreak had a previous criminal record. Early in the judgment, Justice Watson notes that Arreak had complied with restrictions on his liberty while on release for the criminal charge he was facing and after the sentence imposed of two years less a day. The judge was not provided with any reasons to be concerned for public safety. Therefore, the judge explained that recounting any prior criminal matter he may or may not have with the matter under consideration was not essential. The accused and the Crown would be aware of background offences, but the public has no such knowledge.
Counsel for the accused and the Crown attorney consented to the judicial interim release order and the conditions imposed on Arreak. But does this excuse the appeal court judge hearing the matter for neglecting to give fulsome reasons why the order was made?
Neither party in this adversarial process is about to appeal the decision. However, simple acceptance of the agreement by counsel for the Crown and the defence overlooks two critical groups with the right to know that justice prevailed: the victim and the public.
This judgment calls for an explanation of how the public interest criterion of s. 670(3)(c) of the Criminal Code is met under R. v. Farinacci, (1993) 86 C.C.C. (3d) 32, which dictates two components: public safety and public confidence in the administration of justice. This was adopted in R. v. Oland, 2017 SCC 17. Indeed, Justice Watson was aware of the Oland case as he used it as the basis for his decision in another case with a written decision issued the same day, R. v. Ikkidluak, 2024 NUCA 7.
Public confidence in the administration of justice must be seen to be addressed. It is not served by the simple acknowledgment that the Crown agrees with an order’s issuance.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing.). Contact him at johnlornehill@hotmail.com.
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