r v. HER MAJESTY THE QUEEN, 2011 QCCQ 9593

LSJPA — 1142 2011 QCCQ 9593 JG2072 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” No.: 505-03-017372-097 DATE : September 7, 2011 ______________________________________________________________________ PRESIDING: THE HONOURABLE MARIO GERVAIS ______________________________________________________________________ X Born ... 1991 Accused – petitioner v.

HER MAJESTY THE QUEEN Prosecutrix – respondent _____________________________________________________________________ JUDGMENT ON MOTION PURSUANT TO THE CHARTER [1] ______________________________________________________________________ [ 1 ] The young person is charged with the following: On or about September 19, 2009, at City A, District A, did, with intent to mislead, cause Detective Sergeant Arseneault, badge number ..., a peace officer, to enter on or continue an investigation by reporting that an offence – namely, robbery – had been committed when it had not been committed, thereby committing the indictable offence set out in section 140(1)( c )(2)(

a) of the Criminal Code . On or about September 19, 2009, in city A, district A, did steal from Ultramar, a sum of money and goods, of a value not exceeding $5000.00, thereby committing the indictable offence set out in

section 334( b )(

i) of the Criminal Code . On or about September 19, 2009, in city A, district A, conspired with A to commit an indictable offense, to wit: robbery, thereby committing the indictable offence set out in section 465(1)(

c) of the Criminal Code . [ 2 ] The young person has filed a motion under the Canadian Charter of Rights and Freedoms (the Charter ). He alleges that his right to be tried within a reasonable time was infringed. As remedy, he requests a stay of proceedings. [ 3 ] CHRONOLOGY OF THE JUDICIAL PROCESS [ 4 ] On October 29, 2009, an information was sworn before Simon Bessette, a Justice of the Peace. [ 5 ] The accused appeared on October 30, 2009. At that time, two other cases (numbers 505-03-016951-099 and 505-03-016952- 097) had already been inscribed pro forma on the roll.

The accused entered a plea of not guilty in his new file. The three files were rescheduled pro forma for November 27, 2009. [ 6 ] On November 27, 2009, the accused submitted a pro forma request to postpone all of his files until January 18, 2010.

[ 7 ] On January 18, 2010, the accused raised an alibi defence in case number 505-03-016952-097. The three files were postponed pro forma to February 1, 2010. [ 8 ] On February 1, 2010, the accused sought to be tried for case number 505-03-016952-097 on April 30, 2010. At the same time, he asked that the case under review and case number 505-03-016951-099 be deferred pro forma to that same date. [ 9 ] On April 30, 2010, the accused sought to be tried for the case under review. The date May 28, 2010, was set for that purpose.

Priority was given to allow the case to be heard in the morning, since the accused’s lawyer had informed the Court that he would be unavailable that afternoon. [ 10 ] On May 10, 2010, the Crown asked that a new trial date be set, stating that a material witness was temporarily outside the country. The trial was postponed to December 1, 2010. The priority given on April 30 was not renewed since it had originally been granted due to a specific circumstance. [ 11 ] On December 1, 2010, the accused’s trial could not be heard because of the crowded trial calendar. The trial was deferred to February 18, 2011.

Priority was given to the hearing of this trial given the reason for its postponement. [ 12 ] On February 18, 2011, the trial was deferred because of the strike by DPCP lawyers, despite the objection of the accused. The trial was set for June 15, and the priority of the hearing was renewed. [ 13 ] On June 15, 2011, the motion for a stay of proceedings was argued. The accused testified in support of his motion.

The hearing ended on July 4, 2011, with the parties agreeing that the Court would consider the entire court record by reviewing all of the proceedings in this case. [ 14 ] THE EVIDENCE [ 15 ] The testimony of the accused aims to show prejudice arising from the judicial process and the delays incurred. [ 16 ] Essentially, he argues: • That he was present at all hearings; • That, on some occasions, he had to miss school or work to attend court; • That he sometimes waited until the afternoon, only to see his case postponed to another date; • That the judicial process has caused him anxiety, particularly on the days preceding the hearings.

He then sometimes had trouble sleeping; • That he recently completed a security guard course. Three months ago, he applied for a license to work as a security guard. He is still awaiting an answer.

The accused was apparently informed that there is normally just a one-week waiting period, so he believes that the delay in delivering his own license is a result of his pending case [ 17 ] Under cross-examination, the accused admits: • That he was absent and represented by counsel at the hearing on May 10, 2010; • That on certain dates, he also attended court to face charges laid in other cases; • That he was not subject to any release conditions. [ 18 ] ANALYSIS [ 19 ]

Section 11(

b) of the Charter provides that: 11. Any person charged with an offence has the right: … (

b) to be tried within a reasonable time. [ 20 ] In addition, as Michel DuBois J. states so aptly in R. v. F. C.-B. , [2] the statement of principle of the Youth Criminal Justice Act [3] confirms Parliament’s concern that cases involving an accused who is a minor at the time the alleged offenses were committed be heard promptly and diligently: [4] [ translation ] Many Youth Justice Court judges in other Canadian provinces have interpreted the new

section of the declaration of principle of the Youth Criminal Justice Act as Parliament’s explicit reminder of the importance of acting promptly, with speed and diligence, when a young person must answer criminally for their actions. [5] [ 21 ] The objective of protection from delay is described by the Supreme Court in R. v. Morin : [6] The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminal proceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trial

incarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place while evidence is available and fresh . [ 22 ] This protection must be balanced by the interests of society, which are adverse to the interests of the accused. In the decision cited above, the Supreme Court states that: [7] There is, as well, a societal interest that is by its very nature adverse to the interests of the accused. In Conway , a majority of this Court recognized that the interests of the accused must be balanced by the interests of society in law enforcement.

This theme was picked up in Askov in the reasons of Cory J. who referred to "a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law" (pp. 1219-20). As the seriousness of the offence increases so does the societal demand that the accused be brought to trial. The role of this interest is most evident and its influence most apparent when it is sought to absolve persons accused of serious crimes simply to clean up the docket . [ 23 ] In R. v.

Askov , [8] the Supreme Court states that this analysis must weigh the following factors: From the foregoing review it is possible I think to give a brief

summary of all the factors which should be taken into account in considering whether the length of the delay of a trial has been unreasonable . (

i) The Length of the Delay . The longer the delay, the more difficult it should be for a court to excuse it. Very lengthy delays may be such that they cannot be justified for any reason . (ii) Explanation for the Delay . (

a) Delays Attributable to the Crown . Delays attributable to the action of the Crown or officers of the Crown will weigh in favour of the accused. The cases of Rahey and Smith provide examples of such delays . Complex cases which require longer time for preparation, a greater expenditure of resources by Crown officers, and the longer use of institutional facilities will justify delays longer than those acceptable in simple cases . (

b) Systemic or Institutional Delays . Delays occasioned by inadequate resources must weigh against the Crown. Institutional delays should be considered in light of the comparative test referred to earlier. The burden of justifying inadequate resources resulting in systemic delays will always fall upon the Crown. There may be a transitional period to allow for a temporary period of lenient treatment of systemic delay . (

c) Delays Attributable to the Accused . Certain actions of the accused will justify delays. For example, a request for adjournment or delays to retain different counsel . There may as well be instances where it can be demonstrated by the Crown that the actions of the accused were undertaken for the purposes of delaying the trial . (iii) Waiver If the accused waives his rights by consenting to or concurring in a delay, this must be taken into account. However, for a waiver to be valid it must be informed, unequivocal and freely given. The burden of showing that a waiver should be inferred falls upon the Crown.

An example of a waiver or concurrence that could be inferred is the consent by counsel for the accused to a fixed date for trial . (iv) Prejudice to the accused. There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay.

It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay . [ 24 ] In R. v. Morin , [9] the Supreme Court essentially restates this analytical grid while allowing the motions judge, in the exercise of his judicial discretion, to consider any other relevant reasons for the delay. Its most important teaching, in response to the

interpretation given by various Canadian courts in the months following Askov , is, of course, that the analysis should not be based simply on the application of a mathematical or administrative formula. [10] [ 25 ] (

i) The length of the delay [ 26 ] The accused was charged on October 29, 2009, the date the information was sworn. [11] The delay is calculated as of that date. On the date of the motion, there had been a delay of nineteen and a half months. The Crown concedes that this is a long enough delay to continue the analysis. [ 27 ] (ii) The explanation for the delay [ 28 ] (

a) Delays attributable to the Crown [ 29 ] The young person is charged with an offense that, without minimizing its seriousness, does not constitute a complex case or comprise exceptional circumstances likely to generate long delays. [ 30 ] Moreover, the Crown’s February 18, 2011, motion for adjournment because of the strike by DPCP lawyers created an additional delay that must be attributed to the Crown. This conclusion is inevitable despite the legality of the strike. [ 31 ] These circumstances make it all the more appropriate and useful to cite the following excerpt from the Supreme Court’s R. v.

Morin : [12] As with the conduct of the accused, this factor does not serve to assign blame . This factor simply serves as a means whereby actions of the Crown which delay the trial may be investigated. Such actions include adjournments requested by the Crown, failure or delay in disclosure, change of venue motions, etc . (Emphasis added) [ 32 ] (

b) Systemic or institutional delays [ 33 ] On May 10, 2010, the hearing scheduled for May 28, 2010, was cancelled. A new date was set for December 1, 2010. This was the first available court date, and it was immediately accepted by the parties. [ 34 ] This six-and-a-half-month delay was due to the scarcity of judicial resources of the Court of Quebec, Youth Division, in judicial district A.

Concrete steps have since been taken by Court of Quebec authorities to improve the situation. [ 35 ] The rule is nevertheless clear in such matters: delays caused by the lack of resources must be attributed to the Crown. [ 36 ] For this same reason, the December 1, 2010, postponement due to court congestion must also be attributed to the Crown. [ 37 ] (

c) Delays attributable to the accused [ 38 ] In his motion, the accused submits that the delay from November 27, 2009, to February 1, 2010, is attributable to him. According to counsel’s representations, this delay was required to prepare the case and to plan the defence. The Court notes this admission. [ 39 ] This admission is incomplete, however. It fails to take into account the period from February 1 to April 30, 2010.

As noted above under Chronology of the judicial process , the digital recording dated February 1, 2010, reveals that on that date the accused made the following requests: • The setting of the trial date for the offenses alleged in file 505-03-016952-097 for April 30, 2010; • The pro forma postponement of this case and of another case to that same date. [ 40 ] The accused thus chose to delay his trial for an additional three months, preferring first to proceed with the hearing of his trial in another case. This decision is entirely the prerogative of the accused in the conduct of his defence.

The exercise of that prerogative was respected by the Court, which acted in accord with the accused’s request. [ 41 ] However, the delay from February 1 to April 30, 2010, must thus unequivocally be attributed to the accused.

[ 42 ] (

d) Waiver [ 43 ] Apart from the question of the delays attributable to the accused, the Court still maintains that the accused never waived, in whole or in part, either explicitly or implicitly, his right to be tried within a reasonable time. [ 44 ] The accused did not contest the Crown’s May 10, 2010, application for an adjournment based on the absence of a material witness who was outside the country. [ 45 ] Since the trial date of May 28, 2010, had been set three weeks previously and the Crown diligently requested its postponement on May 10, 2010, the accused had no reasonable grounds to oppose it. [ 46 ] In the circumstances, it would be unfair to infer the implicit waiver of his

section 11(

b) Charter right from his failure to raise such an objection. Moreover, the accused accepted the first available date offered to him, avoiding an even longer postponement of his trial. [ 47 ] Furthermore, the accused vehemently objected to the February 18, 2011, postponement, arguing that, taking into account the record as a whole, an additional postponement would create an unreasonable delay.

The filing of this motion was, in a way, foreshadowed on that date. [ 48 ] In conclusion, under heading (ii) The explanation for the delay , the Court established the delay at fourteen and a half months for the purposes of pursuing its analysis. [ 49 ] (iii) Prejudice [ 50 ] Prejudice to the accused is measured in terms of the accused’s interest in security of the person (physical and psychological) and a fair trial. [ 51 ] In many cases dealing with unreasonable delay, the extent of the prejudice suffered by the accused is the determining factor in resolving the dispute. [ 52 ] The assessment of prejudice takes into account the length of the delay. [13] The greater the prejudice, the shorter the reasonable and acceptable delay. [ 53 ] In R. v.

Morin , the Supreme Court considers the protection referred to in

section 11(

b) of the Charter and sets out guidelines for inferring prejudice simply from the length of the delay. It states: [14]

Section 11(

b) protects the individual from impairment of the right to liberty, security of the person, and the ability to make full answer and defence resulting from unreasonable delay in bringing criminal trials to a conclusion. … Implicit in this finding is that prejudice to the accused can be inferred from prolonged delay. … Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined . … Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding . [ 54 ] First, the accused is suffering the inconveniences inherent to the judicial process.

The stress and anxiety he experiences affect his quality of life. [ 55 ] Second, his presence in Court involves certain sacrifices such as lost wages when he misses work and the need to catch up on school work when he misses classes. [ 56 ] On the other hand, by his own admission, his court appearances between the hearing on November 27, 2009, and February 1, 2010, were necessary for his defence.

Given this admission by the accused, the Court added his attendance on April 30, 2010, having previously concluded that this delay was attributable to him. [ 57 ] The Crown also rightly argues that some of the accused’s court appearances were required simultaneously for other cases. Such was the situation on October 30, 2009, November 27, 2009, February 1, 2010, and April 30, 2010, until he sought to be tried.

These attendances for more than one case must be viewed as the accused’s having made the strategic choice, as previously discussed, of tagging the case under review onto file number 505-03-016952-097, which ended on April 30, 2010. [ 58 ] Finally, the accused was absent on May 10, 2010, when the May 26 trial was cancelled.

He was represented by counsel and thus avoided an appearance. [ 59 ] The assessment of the prejudice suffered by the accused in relation to his court appearances must thus be nuanced. [ 60 ] Third, the Court does not accept the testimony of the accused that he is having difficulty obtaining his security guard licence because of his pending case. [ 61 ] The accused presented very scanty evidence on this subject, making just a few vague, general, and imprecise statements. Some of those statements were more

interpretations than statements of fact. His information sources were basically presented in the form of [ translation ] “I’ve been told that”. The content of that information is sketchy [ translation ] (“it’s been three months… it usually doesn’t take more than a week”). [ 62 ] There is no indication of the trustworthiness of the information gathered by the accused. The Court is unable to determine

whether his information really came from conversations with his fellow students, with support staff at the school, with a security guard, or with authorities responsible for delivering licenses. [ 63 ] The link established by the accused between his pending case and the delay in obtaining his security guard license is certainly plausible in theory; however, it is not based on direct evidence. His opinion is based only on conjecture without any real basis in the evidence he submits.

The concept of judicial notice [15] does not make up for the weaknesses in his evidence. [ 64 ] More ample evidence was necessary to prove this prejudice and to support it more fully.

Consequently, the difficulties the accused claims to have encountered in obtaining his security guard license because of his pending case are not proven and are not included in the analysis. [ 65 ] Fourth, the Court notes that in the case under review, the accused is not detained in custody or subject to restrictive release conditions. [ 66 ] Fifth, the nature of the case under review and the delay to date do not allow the Court to infer significant prejudice suffered by the accused. [ 67 ] All in all, the evidence of prejudice adds nothing further to the inconveniences inherent to the judicial process.

Evaluated as a whole, and considering all the foregoing, the Court concludes that the prejudice is slight.

Admittedly, the accused suffers prejudice, but it is minor and not serious. [ 68 ] In these circumstances, the Supreme Court teaches: [16] Where the accused suffers little or no prejudice, it is clear that the consistently important interest of bringing those charged with criminal offences to trial outweighs the accused's and society's interest in obtaining a stay of proceedings on account of delay, because the consequences of the delay are not great . [ 69 ] Given the slight prejudice suffered by the accused, considered in light of the delay of fourteen and a half months, society’s interest in bringing those charged with criminal offences to trial outweighs the accused’s interest. [ 70 ] In the circumstances, the delay is not unreasonable. [ 71 ] FOR THESE REASONS, THE COURT [ 72 ] DISMISSES the accused’s motion; [ 73 ] THE WHOLE , without costs. ___________________________ Mario Gervais, J.C.Q.

Mtre Catherine Pilon For the young person – petitioner Mtre Annie Trudel Criminal and penal prosecuting attorney [1] The Youth Criminal Justice Act provides that no person shall publish the name of a child or young person or any other information that would identify them as having been dealt with under that Act or as having been the victim of an offence committed by a young person, or as having appeared as a witness in connection with such an offence ( Y.C.J.A . sections 110(1) and 111(1)).