2022 QCCQ 13452, 2022 QCCQ 13452

Seepersad c. R. 2022 QCCQ 13452 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL TOWN OF MONTREAL Criminal Division No: 500-01-139592-163 500-01-154011-172 DATE: February 3, 2022 ______________________________________________________________________ BY THE HONOURABLE GENEVIÈVE GRATON, J.C.Q. ______________________________________________________________________ Roger SEEPERSAD Applicant v.

HER MAJESTY THE QUEEN Respondent ______________________________________________________________________ DECISION ON A MOTION TO STAY THE PROCEEDINGS DUE TO UNREASONABLE DELAY [1] ______________________________________________________________________ OVERVIEW [ 1 ] On June 21, 2016, the Applicant and Szlamkowicz were jointly charged in a two-count information of production and conspiracy for the production of cannabis (referred to as file “ 163 ” or “the first file”) [2] . [ 2 ] On April 21, 2017, the Applicant was charged, along with Szlamkowicz and a third accused, in a four-count summons for forgery, identity theft, use of false documents and conspiracy to commit forgeries (referred to as file “ 172 ” or “the second file”) [3] . [ 3 ] Justice Kovacevich is appointed as a justice under

section 551.1 of the Criminal Code .

She has the responsibility of managing both files before trial as well as many other files related to the same investigation. [ 4 ] On July 15, Justice Kovacevich grants co-accused Szlamkowicz’ motion to stay the proceedings due to unreasonable delay [4] . [ 5 ] To give an overview of this large investigation, the Court refers to her judgment from paragraph ten to thirteen: [ 10 ] The present charges stem from the second tier of the investigation called PROJET PAPRIKA undertaken in the spring of 2015 by the Montreal Police Service, Organized Crime - Proceeds of crime Unit (SPVM).

A total of 31 individuals were arrested and face charges taken by way of separate information. [11] The prosecution's case concerning the applicant is straightforward and really, quite simple. During the alleged timeframe, a number of cannabis productions were discovered and dismantled in various buildings by the authorities. [12] The applicant [Szlamkowicz], at the time of the investigation, had vested proprietary interests in these buildings.

The co-accused, Seepersad, acted as the contact person or superintendent for many of these buildings on behalf of the applicant. [13] Because of this vested interest in the buildings, the number of dismantled cannabis productions present in these buildings during the alleged timeframe combined with the intercepted communications, other investigative techniques and police surveillance, the prosecution puts forth that the applicant [Szlamkowicz] is a participant with the co-accused Seepersad or at the very least, he is willfully blind to the commission of the alleged offenses. [ 6 ] On December 14, 2021, Me Israël wrote an e-mail to Justice Kovacevich: “We write to advise you of our intention, on behalf of Mr.

Seepersad, to file and argue a Jordan motion before you.” And another e-mail is sent on December 23: “As previously indicated, we have completed Mr.

Seepersad’s Jordan motion in the files indicated above and attach it herein.” The same day, Justice Kovacevich answers to the parties: “After having discussed the issue with Justice Fafard, (coordinating judge) considering that trial dates are scheduled and my assignments, the parties will address this motion to the Trial Judge.” [ 7 ] Being designated as the trial judge, I set a case management hearing on January 19, 2022. [ 8 ] On January 11, 2022, Justice Kovacevich dismisses Turcotte’s motion to stay the proceedings for unreasonable delay. [5] Turcotte is an accused in the same Paprika project.

He faces four counts of accusation: conspiracy for drug trafficking, conspiracy , production of marijuana and trafficking of marijuana. [ 9 ] In the current motion, the parties disagree on two time periods, which represent differences between the Applicant’s and

Szlamkowicz’s files. [ 10 ] According to the defense, the Applicant’s position is more similar to that of Szlamkowicz.

And according to the prosecution, the Applicant’s position is more similar to that of Turcotte. [ 11 ] At the case management hearing on January 19, 2022, the Court decided to hear Seepersad’s motion to stay the proceedings due to unreasonable delay on the first day planned to begin the trial, January 31. [ 12 ] Also, the Court made clear that the relevant legal and factual conclusions made previously by Justice Kovacevich, in Szlamkowicz and in Turcotte, were going to be followed in assessing the motion. [ 13 ] In R. c.

Bebawi , 2019 QCCS 4393 , Justice Cournoyer JCA, at the time acting as a Superior Court judge, adopts the reasons of his colleague Downs concerning the application of the law C-75 to the jury selection and comments on the horizontal “ stare decisis ” principle. [ 26 ] Everyone knows that the stare decisis principle “is fundamental for guaranteeing certainty in the law”. [ 27 ] In R. v.

Aubin , Bourque J. undertakes a comprehensive analysis of horizontal stare decisis. [ 28 ] She makes the following comments: [TRANSLATION] “ Stare decisis and the importance of avoiding contradictory judgments also exist in part to address the concern of limiting the multiplicity and cost of trials”. [ 29 ] Following her analysis, she observes that [TRANSLATION] “in common law, judges are inclined to follow judicial precedents from their Court, absent particular circumstances that allow them to distinguish the earlier decision from the case at hand”. [ 30 ] She adds that, in practice, a judge [TRANSLATION] “follows in most cases the case law established by [its Court], “out of courtesy or professional solidarity, but most importantly out of concern for better administration of justice’”. [ 31 ] In R. v.

Lebel , Boilard J. wrote the following with respect to judicial comity: [TRANSLATION] A court is supposed to have a single voice. A judge can refuse to endorse the opinion that was expressed by a colleague and subsequently adopted by the other judges if it is no longer convincing because of developments in the law or jurisprudence or because of legislative amendments. Even if a judge’s personal opinions do not always coincide with the court’s opinion and he is in profound disagreement with the court, it seems to me that this reason alone does not justify his dissociating himself from it.

In a court, there cannot be divergent schools of thought or conflicting voices. I believe this would bring about chaos, promote litigation and create deplorable situations of uncertainty among litigants. [ 32 ] Boucher J. summarizes the applicable rule succinctly as follows: [TRANSLATION] “Under the principle of horizontal collegiality, the justices of this Court should normally abide by decisions issued by their colleagues from the same court and deviate from them only for important reasons”. [ 14 ] This being said, the Court will not revisit Justice Kovacevich’s decision in Szlamkowicz.

There is no need for the Court to exercise its discretion in order to re-evaluate the issue of the Jordan 18-month ceiling or to re-examine the recusal of Justice Labelle as a discrete event nor to challenge Justice Kovacevich’s ruling determining in both Szlamkowicz as well as in Turcotte, that the files are considered to be complex cases [6] . [ 15 ] Accordingly, the 18-month ceiling applies to Seepersad’s case as it did to that of Szlamkowicz [7] . [ 16 ] The Applicant arrives at net delay calculations of [8] : • 1127 days (37 months, 2 days) in File #163; • 964 days (31 months, 21 days) in File #172. [ 17 ] And, the Respondent arrives at net delay calculations of [9] :

• 1015 days (33 months, 11 days) in File #163; • 790 days (26 months, 2 days) in File #172. [ 18 ] This discrepancy is based only on two (2) periods beyond which, the parties agree with the calculation of delays: ➢ From July 5, 2017 through September 5, 2017 (relevant to File 172 only); ➢ From October 1, 2018 to January 21, 2019.

Characterization of Delays From July 5, 2017 through September 5, 2017 (relevant to File 172 only) [ 19 ] Concerning file #172, the period from July 5 to September 5, 2017 ( 62 days ) is contested. [ 20 ] The Applicant argues that he only waived delays in file #163 for this period, and not in file #172 since it was the first pro forma date in the latter file [10] . [ 21 ] The Respondent, conversely, argues that the Applicant’s waiver applies equally to both of the files, due to both its nature and the particular circumstances of the files [11] . [ 22 ] The main file #163 and the newer file #172 are both on the docket on July 5.

File #163 is the first one to be addressed. On that date, it is the sixth pro forma of this file. [ 23 ] The transcripts show that the file is postponed to September 5 due to discussions between the parties (decision to ask for a preliminary inquiry or not, a potential agreement and a matter related to the origin of the money). [ 24 ] Then the co-accused, Szlamkovicz and Seepersad explicitly waived the delays from July 5 to September 5, 2017 [12] . [ 25 ] Immediately after, as a second step, file #172 is addressed by the Court.

The judge says: “So what are we doing today in this file?” The prosecution answers: “So it is the first pro forma , we will ask the Court to postpone the case on the same date, on September 5. At this date, my colleagues Me Shadley and Me Karkar will take position as to the fact, whether or not there will be a preliminary inquiry. Regarding Me Laleggia, he already announced that he wants a preliminary hearing for a duration of 2 hours, and committal to trial is not contested from what I understand.” [ 26 ] This second file #172 concerns three co-accused, Szlamcowicz, Seepersad and the third one, Tombran.

The charges relate to offenses of a different nature from the first file; even though they stem from the same investigation and the same disclosure of evidence (forgery, identity theft and use, trafficking or possession of forged documents). [ 27 ] On July 5, it is the first pro forma date in this file. However, even if the applicant and Szlamkowicz face new charges of a different nature, they are already in possession of the disclosure of the evidence for 10 months, since September 15, 2016. [ 28 ] Tombran is the only one of the three that truly received the evidence from the prosecution very recently.

Despite this, Me Laleggia, who represents him, is ready to fix a preliminary hearing and he is not allowed to do so because Szlamkowicz and the Applicant are not ready. [ 29 ] The co-accused, Szlamkowicz and Seepersad want a postponement until September 5 in order to make a decision whether to ask for a preliminary hearing or not. [ 30 ] Me Shadley, on behalf of Szlamkowicz waives the delays from July 5, 2017 until September 5, 2017.

The Applicant does not say or add anything. [ 31 ] Seepersad did not expressly say he was waiving the delays for this file #172. “The waiver can be explicit or implicit, but in either case, it must be clear and unequivocal.” [13] Consequently, the Court concludes that Seepersad did not waive these delays for his file #172. [ 32 ] In the absence of a waiver, the Respondent invites the Court to conclude that the postponement is nevertheless a defense delay. [ 33 ] Tombran is not accused in the first file #163, contrary to Szlamkowicz and Seepersad, he does not have the benefit of previous knowledge of the evidence for a long time before July 5, (10 months).

In file #172 he faces the same charges as Szlamkowicz and Seepersad and he has sufficient time to analyze the evidence disclosed, to be ready to set a date for a preliminary hearing on July 5, 2017.

[ 34 ] Therefore, if there is a postponement to September 5, it is because Szlamkowicz and Seepersad are not ready to make a decision on whether they will have a preliminary inquiry or not. [ 35 ] The Applicant argues in his revised applicant’s response at paragraphs 10 and 11 that: “While the Respondent’s argument is seductive, it fails to account for the legal framework of its own decision to lay new charges. Voluminous evidence must be re-assessed against new charges. Decisions on disclosure must be re-assessed. Decisions on preliminary inquiries are altered. Does the evidence meet the test for committal? Should the accused offer to proceed by way of a

section 549 order to stand trial? Do the new charges trigger a varied strategy? Meaningful discussions between counsel and accused are important and necessary. It is not contested that the Respondent can legitimately file new charges once older charges have been laid. Here it took nearly a year to do so . But to then insist that the new file was not “new” and that an accused is responsible for making quick decisions or otherwise be subject to the imposition of defence responsibility for the incurred delay challenges basic notions of equity.

With File 172, it was the Respondent who elected to place the Applicant in new legal jeopardy , and a reasonable period of time to respond, prepare and make responsible decisions must be allowed, regardless of what approach or decisions the co-accused might take. [ 36 ] In that regard, the Applicant also refers the Court to Jordan at paragraph 65 : [65] To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the defence must be allowed preparation time, even where the court and the Crown are ready to proceed.

In addition, defence applications and requests that are not frivolous will also generally not count against the defence. We have already accounted for procedural requirements in setting the ceiling. And such a deduction would run contrary to the accused’s right to make full answer and defence.

While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [ 37 ] The Court admits that the request to postpone on September 5 is not frivolous and therefore cannot count against the defence. [ 38 ] Consequently, in light of the transcripts of the hearing and the Jordan parameters, the Court concludes that these 62 days constitute a Jordan delay . From October 1, 2018 to January 21, 2019 [ 39 ] There is a dispute as to the allocation of 112 days during this period for both files.

For the Respondent these 112 days should be calculated as “defence delay” [14] . [ 40 ] On February 7, 2018, the Applicant retains new counsel: Me Sandiford. Me Sandiford, the Applicant’s now-former counsel, was preparing a motion for restoration of property pursuant to

section 462.34 of the Criminal Code .

This motion was heard in the summer of 2018 and a decision was rendered by Justice Labelle, rejecting the motion, on October 1, 2018. [ 41 ] The parties agree that the period during which the Applicant prepared, submitted and argued the foregoing application, from May 22, 2018, through October 1, 2018, are to be considered defense delays. [ 42 ] Where the Applicant and the Respondent diverge is as of October 1, 2018. [ 43 ] The Respondent argues that from October 1, 2018, through January 21, 2019, the Applicant’s uncertain status as to his legal representation must be accounted for as a defense delay .

The Applicant considers this period to be a Jordan delay . [ 44 ] The Applicant accepts that the May 22, 2018, to October 1, 2018, period should be qualified as a defence delay. His initial decision to seek the restoration of property did in fact hold up the files. He was causing the delay. Szlamkowicz and the Respondent waited. The Applicant assumes responsibility for holding up the evolution of the file. [ 45 ] On the other hand, the Applicant argues that such was not the same for his second effort to regain funds between October 1, 2018, and January 21, 2019.

He qualifies his ongoing effort as “a parallel effort” that has no causal link to the evolution of the files. [ 46 ] The Applicant adds that days after his second effort was rejected on January 11, 2019, he was present for the hearing of Mr. Szlamkowicz’ disclosure motion that had already been scheduled to proceed on January 21, 2019. The Applicant accepted to be part of the motion even without counsel and sought no postponement. The Applicant insists he was not responsible for any delay. [ 47 ] The 62-day period from November 20, 2018 to January 21, 2019, following the deposit of Mr.

Szlamkowicz’ disclosure motion and before the scheduled hearing, was qualified in Szlamkowicz’ case as a Jordan delay [15] . [ 48 ] The postponement from October 1, 2018 through November 20, 2018 was required by the Applicant to take measures in relation to legal aid. As the Respondent argues, this relates to a possible change in legal representation – to which the Applicant is entitled, but which is considered as a defense delay . [ 49 ] On November 5, 2018 an impromptu case management hearing is set before Justice Labelle in both files in relation with Turcotte’s file and Turcotte’s intent to join the motions.

When asked by the Court for an update about the Applicant, it is mentioned that he is going to go to Legal Aid [16] .

[ 50 ] The Court shares the Respondent’s view that Seepersad’s potential participation in the disclosure motion had not been settled, due to his ongoing issues maintaining legal representation. On December 10, 2018, the submission of a revised motion for restoration of property is postponed untill December 17, 2018. Me Sandiford is still present at the court dates, pending the result of legal aid verifications and a judgment on a revised motion for restoration of property.

Finally, on January 11, 2019, she officially withdraws from the files pursuant to a rejection of the revised motion for restoration of property. [ 51 ] On January 21, 2019, Mr. Szlamkowicz’ disclosure motion hearing begins, before Justice Labelle. The Applicant’s participation in the motion as a self-represented litigant is only confirmed on the same day at the beginning of the hearing when he is asked directly by Justice Labelle. [ 52 ] The Court concludes that from October 1, 2018, through January 21, 2019, the uncertain status of the Applicant’s legal representation must be accounted for as a defense delay .

First, he is asking for a six-week delay. Before January 21, 2019, the Applicant is not in any way ready to proceed. He concentrates all his actions with Legal Aid on presenting his revised motion regarding

section 462.34 C.cr . His situation is still the same as the one prior to October 1, 2018.

He is working on the same continued and amended motion [17] . [ 53 ] He cannot have the benefit and the same qualifications as his co-accused when he is still not officially involved in the motion. [ 54 ] Therefore, the Court arrives at the total net delay calculations of: • 1015 days (33 months, 11 days) in File #163; • 852 days (28 months) in File #172. [ 55 ] In Szlamkowicz’s file, the total net delay calculations is [18] : • 1280 days (42 months, 3 days) in File #163; • 1133 days (37 months, 7 days) in File #172. [ 56 ] In Turcotte’s file, the total net delay is [19] : • 875 days (29 months).

COMPLEXITY OF THE CASE [ 57 ] In the Szlamkowicz decision, Justice Kovacevich, from paragraph 60 to 70, analyses the complexity of the case and she concludes the following at paragraph 71: “ The Court agrees that the above may be considered as hallmarks of complex cases. [20] ln light of the above factors, the Court considers that by reason of the nature of the pretrial motions and the joining of the three other accused, this file can be considered as a complex case.” [ 58 ] After deciding so, she asks if the case’s complexity can justify the delays.

At paragraph 77, she writes: “ln the Court's opinion and experience, notwithstanding the issues raised by the pretrial motions, the complexity of this case does not justify the delays incurred and they are therefore unreasonable.” [21] TRANSITIONAL EXCEPTIONAL CIRCUMSTANCES [ 59 ] From paragraph 79 to 120, Justice Kovacevich addresses the legal principles regarding the transitional exceptional circumstances and analyses the particular context of the Szlamkowicz case, recalling the charges were laid in the first file #163, 17 days before the Jordan decision was rendered, whereas the second file #172 is authorized approximately 9 months following the Jordan decision. [ 60 ] After an extensive analysis, Justice Kovacevich concludes that the Respondent (Mr.

Szlamkowicz) has not demonstrated that the parties reasonably relied on the law as it existed prior to the Jordan decision [ 22] .

Also, she writes that the Respondent's submissions fail to convince her that the transitional exceptional circumstances apply in the present files. [ 61 ] On the other hand, in Turcotte, she reiterates the complexity of the file and reaches the conclusion that the net delay of 29 months (11 months over the ceiling) is a reasonable one due to its overall complexity. [ 62 ] Justice Kovacevich’s different conclusions in the two judgments, Szlamkowicz and Turcotte, find their justification in their respective net delays and the importance of the gap between the net delays and the presumptive 18-month ceiling. [ 63 ] In Szlamkowicz : File #163 42 months and 3 days and File #172 37 months and 7 days.

Respectively 24 months and 19 months over the ceiling. The presumptive 18-month ceiling is more than doubled. [ 64 ] Now in Turcotte : Turcotte has only one file. The net delay is 29 months; 11 months over the presumptive 18-month ceiling. CONCLUSION [ 65 ] The final issue for the Court is to determine whether the Applicant’s position is more similar to that of Szlamkowicz or to that of Turcotte.

[ 66 ] As a reminder, the Applicant’s net delay in the first file #163 is 1015 days ( 33 months, 11 days ) and the Applicant’s net delay in the second file #172 is 852 days ( 28 months ). [ 67 ] In Szlamkowicz, Justice Kovacevich granted the motion and ordered the stay of proceedings in both files. The Applicant’s net delay is 8 months and 22 days less than Szlamkowicz’s in file #163.

This said delay of 33 months and 11 days is more than 15 months over the presumptive 18-month ceiling. [ 68 ] In Szlamkowicz, Justice Kovacevich also granted the motion in file #172 for a total net delay of 37 months and 7 days , which is roughly 4 months more than the Applicant’s net delay reached in the Applicant’s first file #163 ( 33 months, 11 days ). [ 69 ] In the second file #172, the Applicant’s net delay is 9 months less than in Szlamkowicz.

Moreover, it is one month less than the net delay in Turcotte. [ 70 ] The Court concludes that globally, in the context of both of the Applicant’s files, the Applicant’s position is more similar to and closer to that of Turcotte. [ 71 ] Consequently, and considering Justice Kovacevich’s comments and conclusions in Szlamkowicz and in Turcotte, the Court's opinion and experience, notwithstanding the issues raised by the pretrial motions, the complexity of this case justifies the delays incurred and they are therefore reasonable.

And if t he delays should be unreasonable the transitional exceptional circumstances will apply and the Court concludes that the Respondent satisfies that the length of time the case has taken is justified, based on the parties' reasonable reliance on the law as it previously existed [23] . Also, under the previous Morin framework, the delays in the present files would have been deemed reasonable. [24] [ 72 ] Consequently, the Court dismisses the motion to stay the proceedings due to unreasonable delay in both files.

THEREFORE For ALL these reasons , THE COURT: DISMISSES the motion in file 500-01139592-163 and in file 500-01-154011-172; ORDERS Roger Seepersad to stand trial in file 500-01139592-163 and in file 500-01-154011-172. __________________________________ Geneviève Graton, J.C.Q. Me Robert Israël and Me Jacklin Turcot For Mr. Roger Seepersad Me Audrey Simard, Me Vicky Pilote-Henry and Me Amanda Santache For Her Majesty the Queen Hearing : January 31, 2022.