2018 QCCQ 1767, 2018 QCCQ 1767

Comparelli c. R. 2018 QCCQ 1767 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL "Criminal and penal division" No: 500-73-004096-141 DATE: March 15, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE JUSTICE LORI RENÉE WEITZMAN, J.C.Q . ______________________________________________________________________ AMERICO COMPARELLI (seq. 002) MARCELLO FURGIUELE (seq. 004) Accused/Applicants v. THE QUEEN Prosecution/Respondent ______________________________________________________________________ RULING ON APPLICATIONS FOR A STAY OF PROCEEDINGS FOR UNREASONABLE DELAY Sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ A. Introduction [ 1 ] The Applicants seek to have the proceedings against them stayed because of an infringement of their constitutional right to a trial within a reasonable time. Their Applications are almost identical, allowing for the issues and chronology to be addressed jointly. [ 2 ] The Applicants were charged on February 10, 2014. Applying the new framework for 11(

b) applications, set out by the Supreme Court of Canada in the case of R . v. Jordan [1] , both Crown and defense agree that this case has already surpassed the presumptive 30- month ceiling. However, according to the Crown, the “transitional exceptional circumstances” serve to explain and justify the long delay, because the parties reasonably relied on the pre- Jordan law and because this is a “moderately complex case in a jurisdiction plagued by delays.” B.

The charges [ 3 ] The Applicants and three others [2] were jointly charged with six counts of conspiracy to defraud the government of research and development tax credits, fraud, conspiracy to commit a breach of trust, breach of trust and corruption, between January 2005 and July 2009. [ 4 ] A description of the investigation that led to the charges is set out in the Crown’s proceedings and can be summarized as follows: - In 2008, the RCMP launched an investigation codenamed “Project Coche” regarding fraud, bribery and breach of trust involving employees of the Canada Revenue Agency (“CRA”).

This large-scale investigation led to multiple criminal accusations, including the present charges (the Delvex file) which relate specifically to unlawful tax credits for scientific research and experimental development (“R&D”). - The present charges cover a period of four and half years, and stem from alleged false R&D credit claims submitted to the CRA by Delvex, with the assistance of corrupt CRA employees.

More specifically, regarding the Applicants herein, Marcello Furgiuele (“ Furgiuele ”) was the sole named shareholder of Delvex, whereas Americo Comparelli (“ Comparelli ”), a CRA employee, was one of four hidden co-owners of that company. The other CRA employees were Adriano Furgiuele and Antonio Girardi; the fourth hidden owner was businessman Francesco Bruno (“Bruno”). Although only these five accused stand charged in this file, at least 11 others from four different companies were involved in this scheme. - Comparelli was an auditor for the CRA, and never disclosed his interest in Delvex.

He further placed himself in a conflict of

interest, by his involvement in the processing of at least two R&D credit claims submitted by Delvex. - The total fraud alleged in the Delvex file is between $600,000 and $985,000. [ 5 ] As a backdrop to this Application, the question of a potential Jarvis -type application must be addressed. The original criminal investigation “project Coche” which led to these charges and many others, was borne out of a tax audit of the co-accused, Francesco Bruno, by the CRA in 2007 and 2008.

In a related file, before the Court in the district of Laval, charging multiple counts of tax fraud under the Tax Administration Act and the Excise Tax Act , Bruno presented a Jarvis-type motion, seeking to exclude evidence allegedly obtained in breach of his constitutional rights and the principles established by the Supreme Court of Canada in R. Jarvis [3] . The very same search warrants will be relied upon by the Prosecution in the present matter. The Jarvis hearing took 43 days, leading to a decision to exclude the evidence, which decision was subsequently overturned by the Superior Court.

The issue is presently pending before the Court of Appeal. Bruno will similarly seek to exclude the evidence obtained from those search warrants in the present file, although the Applicants, Furgiuelle and Comparelli, will not. C. The chronology of the proceedings to date/ qualification of delays [ 6 ] The Court will review the chronology of the proceedings, quantify and qualify the delays and indicate whether they are the subject of dispute.

The Court will then analyse those delays that are in dispute [4] . [ 7 ] The present charges were laid on February 10 th 2014 : all five accused were arrested and released on a promise to appear in court on April 7, 2014. ➢ + 56 days of “inherent delay” [ 8 ] On April 7, 2014 , at the first Appearance, the Prosecution explained that the volume of disclosure would require an information session with defense counsel in order to facilitate their review of the digital disclosure. The file was postponed to June 3, 2014.

The hard drive containing the disclosure was provided on May 12, 2014 [5] . ➢ + 57 days of “inherent delay” [ 9 ] On June 3, 2014 , at a “ pro forma ” date, all parties agreed that due to the significant volume of disclosure, additional time would be necessary for defense counsel to prepare. The file was put off until October 16, 2014. ➢ + 135 days of “inherent delay” [ 10 ] On October 16, 2014 , the main issue discussed in Court, concerned additional disclosure.

In the context of the present Application, there is some dispute as to the relevance of this additional disclosure, which consisted of all the evidence related to the Jarvis hearing in Laval. More specifically, the question was raised as to whether it was reasonable to delay moving forward until the additional disclosure was complete. The Prosecution stated that they did not believe that providing this additional disclosure should delay the file. It was their position that a case management hearing should be set in order to set dates for the upcoming preliminary hearing.

Judge Paradis suggested that it was not unreasonable for defense counsel to obtain all of the evidence prior to setting a date to proceed with the preliminary hearing. This additional disclosure was said to be available “before the Christmas holidays”. (Thus, approximately two months later).

Counsel for Furgiuele suggested that a case management conference be set in March 2015 (over 5 months later), and all five defense counsel agreed. [ 11 ] Although the co-accused Bruno has presented a similar Jarvis motion in the present case, Furgiele and Comparelli have since confirmed that they will present no such application. In the absence of their standing and/or interest in presenting a Jarvis application, there was certainly no reason for them to wait for this disclosure before proceeding. In any event, this peripheral disclosure did not require that the preliminary hearing be delayed.

Further, not only did both Applicants choose to postpone the case management hearing to a later date, they requested that it be held in March 2015, despite the fact that the (immaterial) disclosure was to be ready sometime in December 2014. A case management date was set for March 30, 2015. ➢ + 165 days (5.5 months) “defense delay” . The qualification of this delay is in dispute [ 12 ] The additional disclosure (931 files totaling 9.51 GB) was provided on October 30, 2015. [ 13 ] On March 30, 2015 a case management conference was held. Bruno indicated that he wished to waive his right to a preliminary hearing.

As for the four other accused, they identified 5 or 6 witnesses required at their preliminary hearing, which was estimated to last 10 days. The case management conference was postponed for six weeks in order to finalize the witness list and time estimates. In the interim, defense counsel reviewed an “Agreement to limit the scope of the preliminary inquiry” provided by the Prosecution (pursuant to

section 536.5 of the Criminal Code ). ➢ + 44 days of “inherent delay” [ 14 ] On May 13, 2015 , the “Agreement to limit the scope of the preliminary inquiry” was signed and provided to the Court. It was agreed that five witnesses would be heard and would require 10 days of hearing. The preliminary hearing was scheduled from February 20, 2017 to March 3, 2017. However, soon after that date was set, the parties realized that there was a scheduling conflict for Me L’Ecuyer, counsel for Comparelli . Thus, on June 1, 2015, those dates were canceled.

Alternative dates were offered in April of 2017, but Me l’Ecuyer was unavailable. The preliminary inquiry was finally rescheduled for 10 days beginning September 11, 2017. ➢ + 864 days to be divided as follows: o May 13 2015 to March 3, 2017: 660 days (22 months) of “institutional delay”. The qualification of this delay is in dispute;

o March 3 2017 to September 22, 2017 : 204 days (6.7 months); ▪ Comparelli : “defense delay”; ▪ Fugiele: “neutral delay”. The qualification of this delay is in dispute. [ 15 ] On September 11 and 12, 2017, the preliminary hearing proceeded. However, contrary to the original plan, the defense did not require the testimony of Mr. Brazeau, the expert witness. Furthermore, cross-examinations were very brief and some Crown witnesses were not cross-examined at all. For these reasons, the preliminary hearing scheduled for 10 days actually took less than two full days.

On September 19, 2017, all 5 accused consented to their committal to trial and the case was remanded to the following week. ➢ + 8 days of “inherent delay” [ 16 ] On September 27, 2017 , the case was set for pretrial case management before Judge Paradis along with the other files stemming from the “project Coche” investigation, and then further postponed to October 23, 2017. ➢ +26 days of “inherent delay” [ 17 ] On October 23, 2017 Judge Paradis informed the parties of the designation of a case management judge pursuant to

section 551.1 of the Criminal Code . All three files were thus postponed to November 3, 2017. ➢ +11 days of “inherent delay” [ 18 ] On November 3, 2017 this Court canvassed all of the preliminary motions to be presented in the three “project Coche” files, and timelines were established for each one . The present 11(

b) application was announced by Comparelli and Furgiuele, a filing deadline of November 24, 2017 was imposed and a hearing date was set for January 25, 2018. ➢ +84 days (2.5 months) of “institutional delay” [ 19 ] On January 25, 2018 , the present Application was heard. The Prosecution emphasized that they were ready to solicit admissions and set a trial date as quickly as possible. Defense counsel mentioned that the expertise of Mr. Brazeau would not be contested, and alluded to the possibility of admissions concerning other witnesses.

Nevertheless, no discussion among the parties with respect to the anticipated length of the trial had yet taken place. The Court required the parties to jointly determine the number of Crown witnesses to be heard and to provide an estimate for the length of the trial, in order to properly consider the estimated date of the completion of the trial. On February 8, 2018, the Court was informed that certain admissions had been made and that the trial would take between 6-10 days. Trial dates have thus been reserved from July 3-13, 2018. ➢ +170 days (5.5 months) of “institutional delay” D.

The periods in dispute: D.1 Disclosure and postponement of the preliminary hearing: From October 16, 2014 to March 30, 2015 (5.5 months) [ 20 ] According to the Applicants, this period should be considered as delay caused exclusively by the Prosecution since it was the incomplete disclosure that prevented them from setting a preliminary hearing date. As Judge Paradis commented at that time, it is reasonable for an accused to require full disclosure before committing to their decisions with regard to a preliminary hearing.

Nevertheless, Judge Paradis’ brief comments cannot be taken as a ruling on the relevance of the additional disclosure or on attribution of the cause of the ensuing delay. At that time, Judge Paradis was not sufficiently informed of the underlying facts to be able to decide whether a postponement was necessary or not. Instead, he relied on defense counsel’s choice to wait for the disclosure, at the same time ensuring that the additional five months they requested was agreed to by all of them.

Judge Paradis agreed to set the case management conference in March after stating: “si je comprends bien, pour que ce soit clair, les avocats des accusés dans la présente cause me demandent de reporter pour gestion en mars” [6] . All defense counsel agreed without any hint of delay concerns. [ 21 ] The Prosecution claims that the relevant disclosure in the Delvex file was complete and had been provided on May 12 2014. Indeed, the “additional disclosure” referred to here is information related to the Jarvis motion that had been presented in Bruno’s file in Laval.

In the course of that trial, significant disclosure was provided, ostensibly as support to Bruno’s application for the exclusion of evidence, based on an allegation of a breach of

section 8 and of the principles established in R. v . Jarvis [7] . Thus, the additional disclosure referred to includes not only that same evidence, but also all of the transcripts of the Jarvis proceedings in Laval, during 43 days of hearing. [ 22 ] As noted above, the same search warrants which were impugned in the Jarvis motion in Laval will be relied upon by the Prosecution in the present file. As this disclosure was related only to a possible Jarvis motion, the prosecution suggested that the preliminary hearing be scheduled, regardless of that forthcoming disclosure.

According to the Prosecution, postponing the file until that additional disclosure was received was a choice made by the Applicants who must bear responsibility for that delay. [ 23 ] The Court qualifies this period as “defense delay” because the postponement was solely requested by the defense, despite the fact that this additional disclosure did not prevent them from making informed decisions about a preliminary hearing. As Judge Brunton explained in R. v . Rice , [8] “ There is nothing incompatible with finding that the Crown is ready to proceed notwithstanding an outstanding disclosure obligation.

To await the communication of the last piece of paper before setting a trial date would encourage delay .” In the judgment confirming Brunton J’s. decision in Rice , Vauclair, J.A., writing for the Court of Appeal adds: « Toutefois, ce n’est pas parce que la défense a le droit d’obtenir ces renseignements qu’ils sont si déterminants pour sa cause et qu’une remise doit être accordée. ” [9] [ 24 ] Not only would it have been possible and appropriate to

schedule the preliminary hearing before this additional disclosure was

provided, it is now perfectly clear that for the Applicants, any disclosure related to the Jarvis motion was singularly irrelevant to their trial, since they are not presenting any such motion. The Court of Appeal in Rice addresses this type of situation very clearly: Il n’est plus suffisant d’invoquer la communication tardive de la preuve comme motif de remise sans que l’importance de la preuve attendue le justifie. Le juge doit s’en préoccuper.

Une remise accordée sans que la situation l’exige sera à la charge de la défense. [10] (References omitted) [ 25 ] Therefore, this period, qualified as a “defense delay” under the Morin framework, is also attributable to the defense under the new Jordan framework. This 5.5 month postponement was not the result of “ defense action legitimately taken to respond to the charges.” [11] As stated in Jordan , “[t]he defense should not be allowed to benefit from its own delay-causing conduct” [12] .

D.2 The postponement of the preliminary hearing: From March 3, 2017 to September 22, 2017 (6.7 months) [ 26 ] The preliminary hearing, scheduled to begin on February 20, 2017, was postponed because of the unavailability of counsel for Comparelli, Me L’Ecuyer. Applying the Jordan framework, it is clear that when the Crown and the Court are ready, delays caused by a lawyer’s unavailability will be borne by the accused [13] . The law on this issue is well–settled and reiterated most recently by the Quebec Court of Appeal in Rice [14] .

Subtracting this period from the total delay of 53 months , the net delay for Comparelli is 40.8 months. [ 27 ] The situation is different for Furgiuele who was not responsible for the postponement. As explained by Watt, J.A. in R. v. Manasseri [15] : Where the proceedings are a joint trial, delay caused by a co-accused cannot be ignored in assessing whether an individual accused's right to tried within a reasonable time has been reached: Vassell, at para. 4 .

Where the Crown, as here, chooses to prosecute both accused jointly, it must remain vigilant that its decision to proceed jointly does not compromise the s. 11(

b) rights of an individual accused: Vassell, at para. 5. The Crown is disentitled to close its eyes to the circumstances of an accused who has done everything possible to move a case along, only to be held hostage by his or her co-accused and the inability of the system to provide earlier dates: Vassell, at para. 7 . Sometimes, the Crown may have to sever accused jointly tried to vindicate the s. 11(

b) interests of one burdened down by another for whom trial within a reasonable time seems anathema: Vassell, at para. 10 . [ 28 ] The issue of delay caused by one co-accused affecting the

section 11(

b) rights of another must be addressed in light of the legitimacy and efficiency of joint criminal prosecutions. As Laskin J.A. held in R. v. Whylie : "A single trial for two or more accused generally conserves judicial resources, avoids inconsistent verdicts, and avoids witnesses having to testify more than once." [16] Thus, “delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial." [17] . Nonetheless, the Crown must remain vigilant that its decision to proceed jointly does not compromise the accused’s 11(

b) rights [18] . [ 29 ] Judge Fairburn. addressed the issue in R. v . Ny in the following terms: […] the concept of "reasonable time" within s. 11(

b) may fluctuate depending on whether accused are standing alone or together.

Provided it is in the interests of justice to proceed jointly, delay above the ceiling may reflect the realities of life in a joint trial and transform an otherwise unreasonable delay into a reasonable one. [19] [ 30 ] In the present case, there is nothing to indicate that it was inappropriate, or contrary to the interests of justice to proceed jointly against Comparelli and Furgiuele, particularly since the evidence against them is the same. [ 31 ] Moreover, the situation at issue here must be distinguished from cases like Vassell , where a stay was ordered because the accused’s persistent and proactive efforts to expedite his trial were thwarted by the delay caused by his six co-accused.

Despite all reasonable steps taken by Vassell , he was "held hostage” by his co-accused and the inability of the system to provide earlier dates.” [20] . In the present case, Furgiuele never opposed any postponement requested by Comparelli, nor did he at any time even allude to the possibility of severance in order to protect his 11(

b) rights. [ 32 ] Under the Morin framework, such a delay was treated as neutral in the 11(

b) analysis. Under the Jordan framework, this is an “exceptional circumstance” as it is “reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot remedy the delay emanating from those circumstances” [21] . As the Ontario Court of Appeal states in R. v . Gopie , “provided it is in the best interests of justice to proceed jointly against co-accused, delays resulting from the fact that there are jointly-charged accused are considered under the exceptional circumstances analysis in Jordan . ” [22] .

In that case, the Ontario Court of Appeal held that the delay caused by a co- accused fell under the “particularly complex” category of exceptional circumstances as “the proceedings were undoubtedly complicated by the fact that the case involved multiple accused.” [23] The delay was justified because severance was not an option, nor was it requested, and the accused were complacent or inactive regarding delays [24] . [ 33 ] In R. v. Singh , where the primary reason for the overall delay was the action of the co-accused in seeking adjournments and the Crown’s severance applications were refused, the B.C.

Court of Appeal held that the delay constituted an exceptional circumstance that lay outside the Crown's control. They concluded that “In the language of Jordan , this was a discrete event ” [25] . [ 34 ] In Asselin v.

R. [26] , Judge Brunton states that where it is objectively reasonable to try the accused together, and the accused makes no attempt to speed up the proceedings, the exceptional circumstances described in paragraph 96 of Jordan will apply. [ 35 ] Applying this analysis to the present matter, the delay caused to Furgiuele by the postponement requested by Comparelli was a “discrete event”, and, as such, the remaining delay for Furgiule is 40.8 months.

D.3 Miscalculation of the time required for the preliminary hearing [ 36 ] As explained above, all parties estimated that the preliminary hearing would require 10 days, following a written agreement to

limit the scope of the hearing and specific time estimates for examinations in chief and cross-examinations of the witnesses. In the end, the Crown’s witnesses were either hardly cross-examined or not called at all. The Crown submits that a date could likely have been set for a two-day preliminary hearing much earlier and thus reduce the overall institutional delay. They suggest that as much as half of the delay to get to the preliminary hearing should be considered as defense delay. The Court disagrees. There is no evidence that the request for a preliminary hearing was a dilatory or illegitimate tactic.

As counsel for Comparelli briefly explained, they made a strategic decision during the preliminary hearing, after hearing the Crown’s main witness, Bercovitch. The Crown contends that the testimony of Bercovitch was no different than what was expected and so they question the legitimacy of this claim.

It is difficult, if not inappropriate, for the Court to second-guess strategic trial-preparation decisions made by defence counsel. [ 37 ] The Court is inclined to accept that there are many moving parts to a criminal trial and that the decision to hear certain witnesses at the preliminary hearing was modified for legitimate reasons. It is of course unfortunate that this added to the delays, but it is not a delay waived or caused by the defense.

Further, according to the statistics gathered by the Court of Quebec for the district of Montreal in May 2015, there was no difference in delay to set a 2-day as opposed to a 10-day preliminary hearing. The institutional delay to set the preliminary hearing was 22 months. E. The law: basic principles [ 38 ] The new framework for 11(

b) applications established by the Supreme Court in Jordan [27] , in July 2016, imposes a 30-month ceiling beyond which delay becomes presumptively unreasonable. The presumption of unreasonableness is rebuttable by evidence of exceptional circumstances [28] . [ 39 ] For cases in the system prior to the Jordan decision, “the framework must be applied flexibly and contextually, with due sensitivity to the parties' reliance on the previous state of the law” [29] . At least until the date when Jordan was decided, it would be unfair to hold the parties to a standard they were not yet aware of [30] .

Where, as here, the delay exceeds the presumptive ceiling in a case that predates the release of the Jordan decision , the transitional exceptional circumstances may serve to prevent a stay of proceedings if the parties reasonably relied on the pre- Jordan law governing 11(b) [31] . This requires a contextual assessment taking into account considerations that are no longer relevant under the Jordan analysis. Specifically, under the previous framework, the issues of prejudice and the seriousness of the offense were examined in the determination of whether delay was unreasonable [32] . [ 40 ] Nevertheless, 11(

b) Charter rights existed well before July 2016, as did applications for stays for unreasonable delay, thus the “transitional exceptional circumstances” cannot shield the Crown from their responsibility for preventable delays [33] . F. Analysis [ 41 ] According to the Jordan framework the total delay is 53 months from which two periods are subtracted as defense delay (5.5 months for the unnecessary postponement of the scheduling of the preliminary hearing, and 6.7 months for the unavailability of counsel). The issue is whether the net delay of almost 41 months , well above the Jordan celling, can be tolerated as falling within the transitional exceptional circumstances, either

a) because of a reasonable reliance on the law as it was, or

b) because this is a moderately complex case in a jurisdiction plagued with lengthy and notorious institutional delays. F.1 Reasonable reliance on the previous state of the law [ 42 ] According to R. v . Williamson [34] , the following factors are relevant to this question: 1) the complexity of the matter; 2) the length of the delay in excess of the Morin guidelines; 3) the Crown’s initiative to expedite the proceedings; 4) the efforts and desire of the defense to move forward expeditiously; and, 5) the prejudice suffered by the accused. In R. v .

Cody [35] , the Supreme Court adds to the list the seriousness of the offence, cautioning against a reading of Williamson that might see this factor discounted post- Jordan , especially considering the often decisive role it played in the Morin framework. 1) The complexity of the matter [ 43 ] According to the Applicants, this is a simple case of fraud and corruption. The sole issue in dispute is the credibility of witnesses, specifically that of Jeffrey Bercovitch, one of the unindicted co-conspirators.

The Crown disagrees, noting that the disclosure involves 9395 files totaling 66.8 GB, organized in seven “calendars”. The proof stems from a large number of documents seized in electronic form, pursuant to 9 forensic computer searches executed by CRA and RCMP officers, over a period of three years. Part of the difficulty will be to establish the date of creation and/or of modification of such documents. [ 44 ] The Crown’s main witness is Jeffrey Bercovitch, a friend of Comparelli and a former CRA employee from the R&D division, who admits his involvement in the fraud.

His testimony will cover multiple statements made during several interviews with the RCMP, for a total of 19 hours, regarding 70 different documents. The Crown will also rely on the expert testimony of Gilles Brazeau who has prepared five reports explaining the nature of the R&D credit program, the manner in which claims are processed and granted, as well as the ethical obligations of CRA employees. [ 45 ] In the absence of any Jarvis type issues at stake, this case cannot be qualified as particularly complex.

Nevertheless, as will be discussed below, it does qualify as a moderately complex matter. 2) The length of the delay in excess of the Morin guidelines [ 46 ] According to the Morin framework, the institutional delay here is 30 months-12 months in excess of the 18-month ceiling of the Morin guidelines. As the Supreme Court has underlined in Cody , the new framework provides for a period of time of adaptation for cases already in the system, but it does not forgive delays which, under the Morin guidelines, would have been considered unreasonable [36] . 3) The Crown’s initiative to expedite the proceedings

[ 47 ] Although these Applications were produced in the court record on November 23 2017, forthcoming Jordan motions were discussed at the first trial management conference on September 27, 2017. Nevertheless, nothing was done by the Prosecution to reserve trial dates as quickly as possible.

Since the completion of the preliminary hearing, no steps were taken by the Prosecution to set a trial date The Crown’s written response to the application for a stay of proceedings, suggests that “a list of admissions solicited by the Crown can be sent to the defense counsel without delay, so that they can be finalized swiftly and a trial date set at the earliest available court date”. The Court finds such a complacent attitude towards trial delays to be particularly surprising given that the Supreme Court’s decision in Jordan had been rendered 16 months earlier.

At the hearing of this Application, a list of potential admissions sought by the Crown was still not ready. The Prosecution’s explanation that they were still waiting to be informed as to whether the Applicants would submit Jarvis motions is, in the Court’s view, unsatisfactory. [ 48 ] It is unclear on the evidence before this Court, when, if ever, the Applicants might have suggested that they were contemplating presenting a Jarvis motion.

In fact, during the case management hearing before Judge Paradis on September 27, 2017, counsel for Furgiuele stated that he did not believe that his client had standing to raise such a motion. As for Comparelli, his counsel was unavailable on that day and his representative had insufficient knowledge of the file to enlighten the Court in any respect, regarding forthcoming applications. However, as a matter of law, it would be a stretch to consider that Comparelli could claim to have standing to bring a Jarvis motion. The Court is not seized with this question nor with arguments for or against the position.

However, the Crown had grounds to question, if not to seriously doubt, the standing of a CRA employee to contest searches conducted at the home or business of a taxpayer and the relevance of the Jarvis principles in such circumstances. [ 49 ] If it can be said that a certain reliance on the pre-Jordan culture allowed the Crown to be complacent-particularly in the absence of the Applicants showing any particular hurry to proceed-they were definitely obliged to shift their attitude as of July 8, 2016.

As soon as the Jordan decision was released, all participants in the judicial system were made aware of their responsibilities with respect to limiting delays. By July 2016, it should have already been apparent to the Prosecution that they needed to take meaningful steps in order to fulfill the expectations set out in Jordan . [ 50 ] More recently, the Crown has taken some initiative by deciding to separate Comparelli and Furgiuele from the co-accused, Bruno, given that they are ready to proceed with their trial, whereas Bruno, who will be presenting another Jarvis -type motion, is clearly not.

Following the preliminary hearing, the Crown announced that they will separate two other co-accused (Antonio Girardi and Adriano Furgiuele) from this group. There are other indications of the Crown taking steps to ensure that the matter remains manageable. From the outset, only five accused were included in the initial information, despite the long list of named unindicted co-conspirators.

As well, due to voluminous disclosure, the Crown provided information sessions for defense counsel in order to assist them in effectively navigating through the electronic disclosure which is organized by themes and by chronology.

Finally, while the Applicants were announcing that they would start to gather the procès-verbaux for the present Application, the Crown had already prepared the documentation required and provided it to the defence, which expedited the hearing. [ 51 ] It was only following the Court’s insistence during the hearing of this Application that the prosecution prepared a list of admissions and provided an estimate of the length of the trial.

Nevertheless, unlike the circumstances in Rice , where the complacency of the Crown contributed to the delays [37] , here, had the Crown been proactive and sent the required list of requested admissions at the beginning of October 2017, as it should have, the trial date would not have been any sooner than July 2018 [38] . 4) The efforts and desire of the defense to move forward expeditiously [ 52 ] Unlike the examples of defense effort and clear desire to move forward expeditiously as seen in Williamson [39] , Vassell [40] , and Manasseri [41] , there is no evidence here of the Applicants’ genuine interest in a timely trial, or of any effort manifested on their part to ensure one.

Quite to the contrary, whenever scheduling was discussed, neither Applicant mentioned anything about wanting to proceed quickly.

More specifically: ➢ When the issue of additional disclosure was raised in October 2014, not only did the Applicants choose to postpone setting a date for the preliminary hearing, they specifically requested that it be set in March 2015, well beyond the date when the disclosure would be available; ➢ On March 30, 2015, during the first of two case management conferences held in order to set a preliminary hearing, the parties were informed that the first available dates for a preliminary hearing were in November 2016.

Me l’Ecuyer, counsel for Comparelli, indicated that he was not available in November, and no comment was made by counsel for Furgiuele; ➢ Similarly, on June 1, 2015, when the preliminary hearing, scheduled for February 2017, was rescheduled to accommodate the availability of Me. l’Ecuyer, no issue of delays was mentioned.

At that time, alternative dates were offered in April 2017, and, once again, counsel for Comparelli was not available, so the date was set for September 2017, without any whisper of an issue regarding delay, on behalf of either Applicant; ➢ Even in November 2017, some 16 months after Jordan was released when the Applicants announced that they intended to present an 11(b), application, there was no urgency whatsoever to expedite the matter.

Counsel for both Applicants requested additional time to prepare their application s –evidently still at the idea stage-as well as to begin to gather the court records ( procès–verbaux) as the basis for their applications. The Court insisted that it be done quickly and questioned why it had not yet been done. Both lawyers explained that they were quite busy. Thanks to the Crown providing them with the procès-verbaux , they were able to meet the deadline of three weeks to produce their Applications. [ 53 ] There is no issue of blame here: the lawyers were legitimately occupied with several other matters.

Nevertheless, the absence of their eagerness to set a date was obvious. 5) The prejudice suffered by the accused [ 54 ] Although there was no evidence presented of actual prejudice, the Supreme Court in Morin [42] and in Godin [43] noted that prejudice can be inferred from the length of the delay. As the Québec Court of Appeal recognizes in R. v . Huard , “the mere passage of

time causes prejudice to the accused” who must live with the “vexations and vicissitudes” of awaiting trial [44] . [ 55 ] The Court must nonetheless consider the action or non-action by the accused inconsistent with a desire for a timely trial. In the immediate aftermath of Morin , Doherty J.A. writing for the Ontario Court of Appeal in R. v. J.G.B. stated that the absence of steps taken by the accused to expedite or seek to expedite the proceedings must reflect adversely on any allegation of prejudice flowing from the delay [45] .

While the new framework since Jordan no longer includes “prejudice” as an express analytical factor, the Supreme Court notes that “we can expect accused persons who are truly prejudiced to be proactive in moving the matter along.” [46] [ 56 ] Under the previous regime, the Quebec Court of Appeal stated, in R. c.

Béliveau [47] : Le préjudice pertinent est celui qui découle du délai pour instruire l'affaire et n'inclut pas tous les inconvénients qui résultent du fait de l'inculpation La juge a, à juste titre, souligné l'importance du facteur lié au préjudice dans la détermination du délai institutionnel qui peut être raisonnablement toléré. Elle a alors conclu que les inconvénients subis par Béliveau sont plutôt dus aux accusations portées qu'au délai pris pour les instruire et que le préjudice est en conséquence minime.

Même s'il est permis "de déduire qu'un délai prolongé peut causer un préjudice", et de considérer que " plus le délai est long, plus il est vraisemblable qu'on pourra faire une telle déduction", la preuve demeure néanmoins un élément crucial pour déterminer l'existence ou l'absence de préjudice. (References omitted) [ 57 ] It cannot be said that the long delay had no effect on the Applicants. But there is no proof of any additional prejudice suffered. Moreover, there is an indication that the Applicants were not unhappy with the pace of the proceedings.

As noted above, nothing was done to expedite or even seek to expedite the matter. The Court is mindful that the onus is on the Crown, and not on the accused, to ensure trial within a reasonable delay, and that in the pre- Jordan culture, it was not incumbent on the accused to demonstrate initiative to expedite matters [48] . However, the absence of any action taken by the defense may lead to a logical inference that the delay was not unduly prejudicial.

This proposition was recently restated by the Québec Court of Appel in Rice : L'absence d'empressement est un indice du peu de préoccupation de l'accusé à l'égard des délais et peut servir à évaluer le préjudice [49] . 6) The seriousness of the offences [ 58 ] These are very serious charges alleging reprehensible conduct motivated by greed, at the expense of the public purse and of law- abiding taxpayers generally. The alleged fraudulent scheme is exacerbated by the corruption and participation of government employees.

The amount at issue, between $600,000 and $985,000, is significant. 7) Weighing all the factors [ 59 ] In addition to referring the Court to the general principles to be applied, most recently reviewed by the Court of Appeal in Rice , the Applicants also refer to two recent decisions post- Rice , which stayed the proceedings due to unreasonable delay. The following distinctions should be noted: In the case of R. v.

Bakaly-Zynga [50] , Judge Bédard specifically underscores that the application of the transitional exceptional circumstances in that case was circumscribed by a pre- Jordan period of only 8 days; in the case of R. c . Colapelle et al. [51] , Judge Simon underscores the troubling lack of planning, organisation, strategy and flexibility of the Crown throughout the proceedings. It must be remembered that every 11(

b) application will turn on the specific facts of its case. As Healy J.A. recently emphasized, speaking for the Court in R. v . Agostino and Perrier: “Il n’existe pas de règles à calcul pour évaluer les délais déraisonnables. Chaque dossier présente des circonstances qui lui sont propres.

Elles peuvent être regroupées de manière plus ou moins grossière par types ou par principales caractéristiques mais, comme le démontre l’ensemble de la jurisprudence, la détermination dans une affaire donnée que les délais sont intolérables ou inacceptables nécessite un examen méticuleux des circonstances de l’espèce. ” [52] [ 60 ] In the present matters, the factors that stand out most are the lengthy institutional delays and the absence of any concern they caused. The Court reiterates that the evidence does not disclose any interest of the Applicants in accelerating the proceedings.

This was true both before and after the Jordan decision. Overall, considering all of the factors analysed above, the Court finds that the parties did reasonably rely on the law as it stood until the Jordan decision was released. This conclusion is sufficient to dismiss the Application. Nevertheless, the second branch of the “transitional exceptional circumstances” exception will also be examined.

F.2 A moderately complex case in a jurisdiction plagued with lengthy and notorious institutional delays [ 61 ] A delay over the presumptive ceiling may be justified where the case is of moderate complexity in a jurisdiction plagued by lengthy, persistent, and notorious institutional delays .

In such circumstances, there was little the Crown could do expedite the matter, and this transitional exceptional circumstance recognizes that the system requires time to adapt to the new framework imposed [53] . [ 62 ] It is admitted by all parties that the district of Montreal was notorious for persistent and problematic delays. As Judge Downs states in R. v .

Roy [54] : [53] Aussi, le Tribunal estime qu'il est maintenant reconnu que les délais en matière criminelle autant à la Cour du Québec qu'à la Cour supérieure dans l'ouest de la province de Québec incluant plus particulièrement les districts formés des régions de Montréal, de la Montérégie, de Laval-Laurentides-Lanaudière-Labelle ainsi que la région de l'Outaouais se classent actuellement parmi les pires délais au Canada. [ 63 ] Although in the end this trial will not be very complex, owing to a series of recent admissions, the case does qualify as one that is “moderately complex”, considering the volume of disclosure, (defense counsel required over a month and a half just to review the initial disclosure), the nature of the charges spanning a four and a half year period, and the joint nature of the prosecution.

Although the

preliminary hearing ended up taking only 2 days, the initial estimate, even after considerable admissions were made, required 10 days of hearing. The defense argues that even if the case was moderately complex, that would not explain the excessive delays here. The Court disagrees: it was the complexity of the case, including the expected 3-day testimony of an expert witness, which required such a lengthy preliminary hearing and it was precisely because of the systemic delays that it took 22 months to proceed with a 10-day preliminary hearing. G.

Conclusion [ 64 ] The Court concludes that the most significant delay here was systemic. According to the statistics of the Cour du Québec, from May 2015, in the district of Montreal, the “normal” delay to set a preliminary hearing of over 2 days was 23 months. But as Jordan underscores, even a significant institutional delay will not automatically result in a stay of proceedings [55] . [ 65 ] Indeed, some examples of lengthy, yet “acceptable” delay during this transitional period are specifically referenced by the Québec Court of Appeal in Rice [56] .

Excluding those cases where long delays were justified because of the particular complexity of the trial, the following are examples cited where significant institutional delays were not unreasonable: in R. v. Palma [57] , an institutional delay of 30 months; in R. v . Paul [58] an institutional delay of 30 months; and in R. v. Namazzade [59] , a delay of between 44 and 48 months which was “essentially” institutional. [ 66 ] Thankfully, much has changed.

Additional judges have been appointed and all of the participants in the judicial system are attuned to their responsibility for limiting delay as much as possible. Chronic institutional delay alone can no longer justify a delay that exceeds the celling [60] . But under the old framework, this delay would not have been considered unreasonable, particularly in view of the absence of additional prejudice alleged and the absence of any evidence of true interest of the Applicants to expedite the matter. Dealing with the issue of 11(

b) applications for cases currently in the system, the Supreme Court in Jordan explains: For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. [61] [ 67 ] The case at bar is not a “simple” one and the delay is not caused by any “mistakes or missteps” by the Crown. As Judge Cournoyer states in R. c .

Antoine [62] : De l'avis du Tribunal, un arrêt des procédures ne se trouvera justifié durant la période de transition exceptionnelle établie par l'arrêt Jordan que si la poursuite a été la source de délais qu'elle pouvait éviter et sur lesquels elle se trouvait en mesure d'agir. [ 68 ] Applying the transitional measures, it cannot be said that the delay is unreasonable. FOR THESE REASONS, THE COURT : DISMISSES the Applications for a stay of proceedings. __________________________________ LORI RENÉE WEITZMAN, J.C.Q. Me David H. Linetsky Attorney for Marcello Furgiuele Me Pierre L’Ecuyer Me Philippe C.

Legault Morneau L'Ecuyer La Leggia Rouleau s.n. Attorneys for Americo Comparelli Me Marie-Claire Émond Me François Blanchette Attorneys for Service des poursuites pénales du Canada Dates of hearing: January 25 and February 28, 2018 [54] Roy c . R. [2016] J.Q. no 19669 .