R v Brouillette, 2016 ABQB 214

Court of Queen’s Bench of Alberta Citation: R v Brouillette, 2016 ABQB 214 Date: 20160412 Docket: 131126195Q1 Registry: Red Deer Between: Her Majesty the Queen Crown - and - Sean Keith Brouillette Accused _______________________________________________________ Reasons for Judgment of the Honourable Madam Justice D.C. Read _______________________________________________________ [1] This application concerns the right to be tried within a reasonable period of time as guaranteed by s. 11(

b) of the CanadianCharter of Rights and Freedoms. The applicant sought a stay of judicial proceedings based on R. v. Askov, (SCC),[1990] 2 SCR 1199. I granted the application with brief oral reasons, and promised written reasons to follow. These are those writtenreasons. Facts:

[ 2 ] The facts underlying this application can be summarized as follows. [ 3 ] On an information dated September 23, 2013, Mr. Brouillette was charged with theft and fraud, the alleged victim being his employer. Mr. Brouillette was at the time, comptroller of the company he worked for. [ 4 ] He was arrested on that same day but was released on a recognizance and a promise to appear. He first appeared in Provincial Court on November 21, 2013, electing to be tried in a Queen’s Bench judge alone trial.

By this time the Accused already had counsel who requested an adjournment to permit him time to file a necessary ‘Form A’ so the Crown could determine how much time would be required for a preliminary hearing. There is a notation on the endorsements that the Defence already had disclosure.

The matter was adjourned to December 20, 2013, at which time the preliminary hearing was scheduled for October 29-31, 2014. [ 5 ] The preliminary hearing was held as scheduled and the Accused was committed to stand trial on October 29, 2014 on the charges set out in the information as well as a third charge added by the Crown of theft of documents from the employer. [ 6 ] An indictment issued November 7, 2014 outlining the three charges and the Accused was arraigned on December 1, 2014 at which time the trial was set for April 11-15, 2016 with a pre-trial set for February 11, 2015.

No objection by Defence to these dates was recorded on the endorsements. [ 7 ] On February 11, 2015, the pre-trial conference was held as scheduled. Again, no objection was recorded on the Pre-trial Conference memorandum to the trial dates. Nor was there any indication of a request to find earlier trial dates. However, a notation does indicate that Defence intended to make a s. 11(

b) Charter application respecting breach of his rights to a trial within a reasonable period of time. There is a handwritten notation on the Pre-trial memorandum, apparently written by the Pre-trial judge that defence counsel intended to seek a one day hearing before the trial judge in the fall of 2015 “for a s. 10(b) [ sic ] hearing”. It is accepted by both parties that this was simply a clerical error and the reference ought to have been to s. 11 (b). The pre-trial conference judge also said this in the note: “Defence wants time to put together Notice and ‘appeal’’’ [ sic ].

Again both counsel agree this should have read ‘application’ and the word ‘appeal’ was simply a clerical error. [ 8 ] Notwithstanding what was said to the Pre-trial Judge, no application was made in the fall of 2015 and nothing more was heard by the Crown from defence counsel until February 1, 2016 when he advised Crown by email that his notice of constitutional argument was nearly complete. Crown counsel replied and advised defence counsel to obtain a hearing date from the Trial Coordinator.

Defence counsel replied on February 2, 2016 saying he had been advised it was not possible to obtain a hearing date with the assigned trial judge before trial and the application would have to proceed on the first day of trial. He concluded by saying he would provide the Charter notice “well in advance of April 11”. [ 9 ] That did not happen. Crown did not hear from defence counsel until March 29, 2016 when Crown received by email an unfiled Charter notice at 10:47 AM.

No supporting documents were included. [ 10 ] Notwithstanding that this is a Red Deer matter and the assigned trial judge is an Edmonton judge, defence counsel, who practices out of Calgary, then obtained an ex parte fiat in Calgary on March 30, 2016, permitting filing of the Charter notice. Crown was sent a faxed copy of the filed Charter application on March 30, 2016, again with no supporting documentation. [ 11 ] The Crown sent two letters to the Court and to defence counsel in reply on March 31, 2016. From the court copies of these letters, it is not possible to determine which was sent first.

Both acknowledged receipt of the Charter notice. One said this: I have not received any transcripts to support this application. Please be advised that pursuant to the Constitutional Notice Regulation 102/99 Notice must be filed with the court and received by the Crown fourteen (14) clear days in advance of trial. Crown will not be consenting to abridging this notice requirement. [ 12 ] The other said this: I have not received any transcripts, information/endorsements or any documentation whatsoever to support this application. The Crown must insist upon compliance with

Part 2: Division 4:

Section 12 of the Court of Queen’s Bench Criminal Proceedings Rules, wherein the application and supporting documentation must be served on the parties 60 days before trial. [ 13 ] On April 1, 2016, the Crown received supporting documentation for the application. Crown ordered a transcript of the ex parte proceedings of March 30 and received a transcript on April 7, 2016. It was at that point they began to prepare for the Charter application.

Through what can only be described as herculean effort, they were able to prepare and provide their written submissions to both the Court and defence counsel on April 11, 2016, the first day of the trial. [ 14 ] On April 11, 2016, the Crown applied to have the Court refuse to hear the Charter application because of its late arrival.

In argument, defence counsel admitted he was unaware of the Queen’s Bench Practice Note No. 6, Criminal Proceedings Rules (English) (February 25, 2014) establishing the 60 day notice requirement and had been operating under the assumption that the 14 day notice requirement set for Provincial Court by the Constitutional Notice Regulation , AR102/1999 applied. The Practice Note governs the practice and procedure of criminal proceedings in the Court of Queen’s Bench, not the Constitutional Notice Regulation , which pertains to proceedings in the Provincial Court.

Defence counsel’s application was well outside the deadlines established by the Practice Notes and far later than the fall of 2015 when they had told the Pre-Trial Judge they would make the application. However, the Crown’s application was denied. Crown should not have been taken by surprise since s. 11 (

b) had been a live issue at least since the pre-trial conference and although they had had to scramble, they were able to get their materials before the Court. Under the circumstances, I was prepared to allow the application to proceed. [ 15 ] The Accused was therefore permitted to make his Charter application on the afternoon of the first day of trial. Analysis:

[16] The legal framework for analysing an alleged breach of an Accused’s Charter right to be tried within a reasonable time wasset out by the Supreme Court of Canada in R. v. Morin (SCC), [1992] 1 S.C.R. 771, 1992 CarswellOnt 75 (WL). Theprimary purpose of s. 11(

b) of the Charter is the protection of the rights of an Accused to a fair trial, security of the person and liberty (atparas 22-24). The protection of these rights must, of course, be balanced against society’s interest in ensuring that those who break thelaw are brought to trial (at para 25). [17] The delays in this matter have been significant. The time period that passed between the swearing of the information and thearrest of this Accused on September 23, 2013 and the preliminary hearing which commenced on October 29, 2014 was 401 days.

Committed to stand trial on October 29, 2014, he did not come to trial until April 11, 2016 for a trial slated to take five days. The periodof time to be considered since committal is 502 days. [18] The delays in this case far exceeded the guidelines as set out in Morin. Those guidelines refer to periods of 8 to 10 monthsfor institutional delay in the provincial courts and of 6 to 8 months from committal to trial for a total guideline period of between 14 and18 months.

The total delay in this case is over 31 months. [19] The length of delay, on its own, however, does not make the delay unreasonable. [20] The analysis is not a mathematical or administrative formula but rather to be considered as part of a judicial determinationbalancing the interests which s. 11(

b) is designed to protect against factors which either inevitably lead to delay or are otherwise thecause of delay. The legal framework for analysis of whether a delay has been unreasonable is assessed by looking at the length of thedelay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice tothe accused and the interests that s. 11(

b) seeks to protect (Morin, at paras 26-27). As Sopinka, J noted in Morin, the “guideline is notintended to be applied in a purely mechanical fashion” (at para 46). [21] In a separate judgement concurring with the result, McLachlin, J (as she then was) set out a useful guide for analysis of s.11(

b) applications, beginning at paragraph 85. The first step is to determine whether a prima facie case for unreasonable delay has beenmade out. Such matters as length of delay, the reasons for the delay, and waiver should be considered at this stage. If the prima faciecase is made out, the court must proceed to a closer consideration of the accused's right to a trial within a reasonable time, and thequestion of whether it outweighs the conflicting societal interest.

As she said, “ the interest of society in bringing those charged withcriminal offences to trial is of constant importance, [but] the interest of the accused varies with the circumstances, and is usuallymeasured by the fourth factor -- prejudice to the accused's interests in security and a fair trial”. [22] The reasons for the delay apparent in this matter are almost entirely institutional. Crown estimates that of the 401 days fromthe arrest to the preliminary hearing, only 88 days are attributable to inherent delay.

This runs from the date of arrest to the appearancedate of December 20, 2013 when the dates for the Preliminary Inquiry were set. I agree. The remaining 313 days can only be attributedto institutional delay. No applications of any sort were made by either side. Disclosure was apparently already complete. I was notprovided with a transcript of the proceeding on that day. There is no notation on the endorsements.

There is no evidence of anythingthat delayed the Preliminary Inquiry other than the fact that a three day preliminary inquiry could not be accommodated by theProvincial Court before the date it was set for. [23] In respect to the 502 days since committal, it seems clear from the available record that the trial dates set were the first fivedays available and that defence raised the possibility of an Askov application consequent on the delay – either before the Court or inprivate conversation. Defence asserts this was the first five day slot available. Crown does not dispute this.

Again, I do not havetranscripts of this appearance. I do have the endorsements on the indictment as well as notes taken by the paralegal for the Crown whowas present at the appearance. The endorsements do not indicate any discussion about trial dates or that any other dates were offered. The paralegal’s notes were read into the record by the Crown with no objection by the defence and they indicate that the earliestavailable dates were the ones chosen and that defence counsel indicated there was a possibility of an Askov application. [24] There is no doubt Mr. Brouillette agreed to the trial dates offered.

However, this decision through counsel to agree to theoffered trial dates was merely acquiescence to the inevitable and not a waiver of his rights. (see Morin, at para 33) [25] The case is one of fraud as well as theft but there is nothing on the record to indicate it is particularly complex. The chargesrelate to alleged personal use of the company credit card as well as alleged cash advances of funds to the Accused on days other than paydays and without proper deductions. The pre-trial conference report indicates the Crown expects to call three civilian witnesses, allemployees of the company allegedly defrauded.

Certain credit card records respecting the Accused’s company credit card as well asbusiness records and other financial records are expected to be tendered. No expert evidence was anticipated. The only other live issueappears to be the admissibility of certain financial records and transcripts of the disciplinary hearing before the Society of ManagementAccountants.

According to the pre- trial conference report, the main issue for the Defence is whether the Accused had the necessaryintent. [26] When added to the fact that disclosure was apparently complete when the matter was set for preliminary inquiry, there isnothing to suggest that the case was delayed in any fashion because it was particularly complex and the parties needed time to prepare. [27] The Crown alleges that notwithstanding that the delays fall far outside the guidelines established in Morin here there was nobreach of the Accused’s s. 11(

b) rights for two reasons: the timing of the Askov application and the lack of prejudice to the Accused. [28] The timing of the Askov application is really an issue of waiver but it also falls to be considered under the questions reasonsfor the delay as well as questions of prejudice. [29] Although the application was made late, and was made on the first day of trial, it did not come as a complete surprise to theCrown since the issue was ‘in the air’ for some time. Nor, unlike in Sharma did it require an adjournment in order for the Crown toprepare its response and so did not, in and of itself, result in a delay.

In this respect, it is different from the situation in R. v. Sharma[1992] 2 S.C.R. 814, released together with Morin.

[ 30 ] Nor can I conclude that the late Askov application constituted an express or implied waiver. As the Supreme Court said in Morin , the test for waiver is stringent. “Waiver must be clear and unequivocal and with the full knowledge of the right one is waiving” (at para 33). [ 31 ] Certainly Mr. Brouillette was aware of his rights under s. 11 (b). That is clear from the record. His counsel offered reasons for having delayed the application.

It was due, he said, to his own professional and personal circumstances in the fall of 2015 and not because of any instructions from the Accused or attempt to obtain a tactical advantage. There was certainly no express notice to or conversation with the Crown indicating Mr. Brouillette would abandon his application. Although the Crown seems to have assumed that the application would not proceed when none was made in the fall of 2015, there was no specific reason they should have done so. It is true, as Crown points out, that defence is under no obligation to and does not tell Crown of changes in defence tactics.

However, as I have already said, the issue was raised at the pre-trial and so was “in the air” even in the absence of an application. Nor can the fact that the Accused counsel was unaware of the deadlines imposed by the Criminal Practice Note enable me to conclude the Accused must be inferred to have waived his rights under s. 11 (b).

Waiver cannot occur as a result of inadvertence and the Practice Notes do not have the force of law or regulation, however much the Court may require them to be followed in order to manage its own procedures and resources. [ 32 ] The Accused did not expressly waive his rights under s. 11 (

b) and I cannot infer it from the facts here. I note that in Sharma the Supreme Court concluded that the accused there had not waived the entire period of delay even when he did not bring his application until the first day of trial with no prior notice to the Crown. [ 33 ] From the evidence, it is clear that the Accused took no actions to expedite the trial. I have no evidence he made any protest on the record when the dates were set.

Although counsel for the Accused indicates that he recalls having a conversation with Crown who appeared at the arraignments after court in which he expressed astonishment at the late trial dates being offered, this assertion is not evidence and could not be confirmed by trial Crown who was not the Crown present at arraignments. However, the Accused also did nothing to delay the trial, with the exception of his late application and he did expressly waive any delay that resulted.

In fact, however, no actual delay has resulted from the late application. [ 34 ] Neither did the Crown do anything to either expedite or delay the trial. The delay is entirely institutional, as I have said, and has not been waived by the Accused. [ 35 ] This case is in Red Deer, a jurisdiction that has experienced institutional delays that are well recognized. Efforts have been made to address the problems but Alberta, in general, has an insufficient number of superior court judges and so the ability of court administration to address the specific concerns of Red Deer has been limited.

The problem is exacerbated by the fact that Red Deer has only three Queen’s Bench courtrooms and the physical constraints of the current facilities mean that Provincial Court rooms are also well used so it is rare that a courtroom can be loaned for a QB matter. There are also shortages of clerks and other staff necessary to staff a courtroom, even if one can be found. These problems in Red Deer are long standing and did not just arise. [ 36 ] Are these problems specific to Red Deer?

No evidence of trial wait times in jurisdictions other than Alberta was provided and the Alberta statistics provided were from the Annual Reports of Alberta Justice. These were of little assistance as they provided only statistics respecting the ‘median’ time elapsed from first to last appearance for a criminal case in Provincial Court and Court of Queen’s Bench. In other words, the statistics mix apples and oranges in that they combine cases in both Alberta trial courts and include all cases, not only those that went to trial.

Further, in not separating Provincial Court statistics from those of Queen’s Bench, they further mix apples and oranges in many respects. Queen’s Bench’s jurisdiction requires that more serious charges must often be dealt with there. Trials are more complicated and can be much longer. As well the median of a group of numbers is not the same as the average of those numbers. In a group of numbers the median is the number where as many numbers of the group are larger than the median as are smaller. For example, in the group 4, 5, 6, 9, 40, 76, 94, the median is 9, three numbers being larger and three smaller.

However, that is certainly not the average of those numbers. [ 37 ] Whether the lag times in obtaining trials in Red Deer are an outlier or not, the limited resources available in Red Deer cannot affect an Accused’s right to trial within a reasonable period of time. [ 38 ] I move now to a consideration of prejudice to the Accused. [ 39 ] Prejudice is concerned with three interests of the accused that s. 11 (

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that automatically accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence or otherwise raise a defence ( R. v. Godin , 2009 SCC 26 , [2009] 2 SCR 3, at para 31 , citing Morin at paras 56-59 ). [ 40 ] As Sopinka, J wrote in Morin , even in the absence of specific evidence of prejudice, "prejudice may be inferred from the length of the delay.

The longer the delay, the more likely that such an inference will be drawn" ( ibid ). [ 41 ] Dealing firstly with his right to liberty, Mr. Brouillette was not incarcerated after his arrest but was, instead, immediately released on a $25,000 recognizance. The bail conditions imposed upon him were not onerous. Even these were later varied at his request. He has not had a substantial actual prejudice to his liberty rights. [ 42 ] There was some evidence from the Accused, however, of actual prejudice affecting his right to security as a person.

Among the conditions he was under was a requirement that he remain in the Province of Alberta unless he obtained permission from the RCMP or the Court to go outside of Alberta. The Accused did not seek to amend this condition until after his father suffered a heart attack in February 2014. Although the condition was removed on February 24, 2014, sadly this occurred after his father passed away in Winnipeg. The Accused was unable to be at his father's side. Other evidence provided by the Accused of prejudice is more minor.

He was unable to leave Canada for the wedding of a good friend in the United States and the wedding had to be postponed. He was unable to attend a Grey Cup game in the fall of 2014 and had to give his tickets to his son. He and his wife were unable to celebrate their 25th wedding anniversary in Dallas as they had planned to do. Such inconvenience and prejudice pales when one considers society’s interest in ensuring that those charged with crimes are brought to justice.

[ 43 ] Other evidence of prejudice the Accused testified to is not attributable to the charges he was facing however, and is, instead, attributable to the disciplinary proceedings taken by the Society of Management Accountants, the professional body to which the Accused belonged. [ 44 ] The Accused also gave evidence of the stress he was under as a consequence of the charges he faces and the effect this has had on his relationship with his wife and his son. It was not necessary to bring forward medical evidence for me to accept the evidence of stress and the impacts on personal relationships.

These stresses are, of course, because of his charges. Yet it cannot be denied that they continued each day while he waited for his trial. [ 45 ] As Sopinka J indicated in Sharma , given the stress the Accused says he was under, one would think that he would have done more to attempt to obtain earlier dates (at para 23). The Accused is not required to do anything to expedite his trial but his inaction can be taken into account when assessing prejudice ( Morin at para 57 ).

I conclude that the Accused was not so stressed by the delay that he felt the necessity to make active attempts to speed up the process (see, R. v. MacPherson , 2015 ABCA 139 , R. v. Dias , 2014 ABCA 402 , and R. v. Yelle , 2006 ABCA 160 ).

Nonetheless, this finding begs the question of whether an earlier trial date for this five day trial could have been found in Red Deer’s overcrowded dockets. [ 46 ] Although, I accept that the Accused has suffered actual prejudice as a result of the delay in bringing this matter to trial, it may be less serious than he suggested in his testimony. [ 47 ] My conclusion is, however, that this Accused has shown he has suffered some actual prejudice and the delay in getting this matter to trial has been too long and prejudice can be inferred from that fact alone. [ 48 ] Nonetheless, the charges the Accused faces are serious and I must balance the prejudice suffered by the Accused against society’s interest in seeing persons charged with offences brought to trial. [ 49 ] I have concluded that in this case, although the actual prejudice is not severe, the mere fact that it has taken so long to get to trial is prejudicial.

He has been stigmatized, has been under stress, and has had his family and social life disrupted. He has had to cope with the uncertainty of having these charges hang over his head for too long. This is the kind of prejudice that goes beyond the length of time that can be legitimately supported on the basis of limited institutional resources. The public also has a legitimate interest in ensuring that trials be held promptly. This ensures that the justice system enjoys the confidence of the public. The prejudice here outweighs the public’s other legitimate interest in bringing this matter to trial.

Closing [ 50 ] The Accused’s application for a judicial stay of the charges he faces is allowed. Heard on the 11 th day of April, 2016. Dated at the City of Red Deer, Alberta this 12 th day of April, 2016. D.C. Read J.C.Q.B.A. Appearances: Bina Border and Brittany Ashmore Crown Prosecutor’s Office for the Crown Paul Gracia Gracia Law for the Accused