Hearing explored court’s jurisdiction over case

A visiting Supreme Court Justice has reserved judgment on a civil case launched by a man in his early 50s who claims he was assaulted by two RCMP officers while in police cells.

A visiting Supreme Court Justice has reserved judgment on a civil case launched by a man in his early 50s who claims he was assaulted by two RCMP officers while in police cells.

Justice Harvey Groberman said he will try to issue a written judgment as soon as possible.

The hearing, held in Whitehorse last week, was to determine if the Yukon Supreme Court has jurisdiction over this case, or if the case must go to a federal court.

Anne McConville, counsel for the Attorney General of Canada, argued that the matter is under the “exclusive jurisdiction” of a federal court. She said the case should be dismissed or “struck out” from the Yukon court.

The circumstances of the case, as McConville outlined them, were that on May 10, 2003, Arthur Joe was detained in RCMP cells after having been arrested for breaching one of the provisions of his conditional sentence.

Two years later, in March 2005, Joe brought charges of assault causing bodily harm against two RCMP officers and a hearing was set for May 18, 2005.

But on May 5, former Crown prosecutor Mike Cozens stayed the charges, said McConville.

Another two years later, in October 2007, Joe filed a petition for a judicial review of the stay of charges. Joe sought to have Cozens’ decision quashed, said McConville.

McConville reiterated in her argument that a federal court has exclusive jurisdiction over the judicial review and the Yukon Supreme Court should dismiss the case.

But Andre Roothman, counsel for Joe, argued that the judicial review is within the Yukon Supreme Court’s jurisdiction.

The plaintiff has alleged that the Crown was exercising “statutory power” when the charges were stayed in May 2005, Roothman said later.

Roothman argues that this provision is not valid.

Roothman added that a video of the alleged assault against Joe exists. Viewers of the video are “just absolutely shocked” by the footage, said Roothman.

If the application for a judicial review is unsuccessful, said Roothman, taking the case to a federal court may not be possible because of a 30-day deadline for filing such a claim, which has long since passed.

The events in question happened five years ago, McConville pointed out during her submission.

But Roothman said he will approach the federal court, irrespective of the missed deadline, if the Yukon Supreme Court dismisses the case.

Roothman commented that his client, who is a former residential school student, was arrested in May 2003 at a drinking house.

Joe’s presence at the establishment was a violation of his conditions, which included an abstension clause against using controlled drugs or alcohol.

But Roothman said it is “basically impossible” for an offender who is alcoholic to comply with such conditions.