2020 QCCA 1483, 2020 QCCA 1483

Poulin c. R. 2020 QCCA 1483 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007157-199 (540-01-074413-165) (540-36-001028-181) DATE: 11 NOVEMBER 2020 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. KYLE POULIN APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] With leave of a single judge, this is an appeal against a decision of the Superior Court [1] that dismissed an appeal against a finding of guilt by the Court of Quebec [2] on a charge of driving with an excessive alcohol concentration in his blood. [3] The sole issue before the Court is whether the Superior Court erred in concluding that the trial judge made no error in dismissing the appellant’s motion for a stay of proceedings due to unreasonable delay under sections 11(

b) and 24(1) of the Charter. [4] [ 2 ] At the hearing of the motion the parties agreed that the total delay at issue was 20 months and 11 days. This total comprised two segments that are relevant to this appeal: first, a delay between 1 December 2016 and 15 March 2017 and, second, a delay between 17 May 2017 and 27 November 2017. The defence agreed that if the proper characterisation of the delays amounted to less than eighteen months the motion should be dismissed. The trial judge so concluded and dismissed the motion for a stay. [5] [ 3 ] Only the first period of delay was at issue before the Superior Court.

Before the hearing of the present appeal, however, this court asked the parties to address both periods of delay because both are relevant to a consideration of the net delay. [ 4 ] On 21 March 2018 the trial gave judgment on the motion under

section 11(

b) of the Charter. With respect to the second delay in issue, the trial judge expressed her conclusion as follows: Il est en preuve que le 17 mai 2017 était une date disponible pour la tenue du procès, mais la Défense n’était pas disponible à cette date, ce qui a créé un délai d’environ six mois. Cependant, la Défense a offert plusieurs dates où elle était disponible et le Tribunal note ses efforts pour minimiser les délais. Ainsi, le Tribunal lui impute seulement une

partie de ces délais, soit deux mois. Le délai est d’environ quinze (15) mois. Il est inférieur au plafond de dix-huit (18) mois fixé par la Cour suprême. [ 5 ] This conclusion states findings of fact: that the trial could proceed on 17 May 2017; that the defence was not available on that day and that the unavailability of the defence caused a further delay of 6.5 months. The judge attributes two months of that further delay to the defence. [ 6 ] The trial was set for 15 March 2017.

In court on that date, before a judge who was not later the trial judge, the prosecution announced that an essential witness was absent and that another date would have to be scheduled. An exchange ensued in which the court and the parties sought to fix a date on which the designated prosecutor and the court could proceed. The court clerk first announced that the next available date was 27 November 2017.

She then announced that 17 May 2017 was an available date for the court and the prosecution to proceed but specified that it would not be the same prosecutor on that date. [ 7 ] In reply the defence announced that it would not be possible to proceed on 17 May 2017 for personal reasons but that a date in April would be feasible if there were an available date. The clerk says that otherwise there is no available date before 27 November 2017. The court asks the defence whether the case could be set for hearing on 27 November.

The defence replies: “Yes, please.” [ 8 ] In this exchange there is no other discussion of particular dates that might be available between 15 March and 27 November 2017. There is no further mention of available dates until the defence filed its motion under

section 11(

b) of the Charter on 27 October 2017. [ 9 ] In its motion of 27 October 2017 the defence affirms that it will rely in part upon the affidavit of A.M. as evidence. The affiant, A.M., is a paralegal in the office of defence counsel. The affidavit is dated 16 March 2017, which is one day after the defence agreed in

court to fix 27 November 2017 as the date for trial. In her affidavit the affiant affirms that defence counsel would be available to proceed on a variety of dates between 1 May 2017 and 22 November 2017. She also affirms in the conclusion to her affidavit the following: I have also reviewed the correspondence sent by Mr. Anber yesterday, which I personally faxed, and I can confirm that Mr.

Anber advised the Crown that he had “numerous dates available in early June, July and every month following prior to, and including, November.” [ 10 ] The record contains no such correspondence and in the absence of such correspondence this affirmation is, self-evidently, hearsay. Further, the transcript of the hearing of 15 March 2017, at which the trial date was fixed at 27 November 2017, contains no specific mention by the parties or the court of alternative dates between 1 May 2017 and 22 November 2017; nor does the affidavit make any mention of available dates in April.

Although the affidavit is dated 16 March 2017, the first indication of the affidavit appears in the motion dated 27 October 2017. [ 11 ] In short, on 15 March 2017 the defence declined the proposed date of 17 May and agreed to the date of 27 November 2017 without mention to the judge at that time of any other possible dates between those two dates.

There is no correspondence in the record concerning alternative dates and the first mention of this possibility is the production of an affidavit dated 16 March 2017 in the motion dated 27 October 2017. [ 12 ] In these circumstances the factual findings of the trial judge that are stated above in paragraph [5] are entirely sound. By contrast, her observation that the defence made efforts to minimise the delay can only be a reference to the paralegal’s affidavit, which entered the record when the motion under

section 11(

b) was filed on or about 27 October 2017. The trial judge was justified to attribute the delay of 6.5 months between 17 May and 27 November 2017 to the defence. There remains, however, a question concerning her decision to attribute only two months of that delay to the defence. [ 13 ] The reasons of the majority in Jordan appear to establish a general proposition in this regard: the defence will have directly caused the delay if the court and the Crown are ready to proceed, but the defence is not. The period of delay resulting from that unavailability will be attributed to the defence.

However, periods of time during which the court and the Crown are unavailable will not constitute defence delay, even if defence counsel is also unavailable. This should discourage unnecessary inquiries into defence counsel availability at each appearance. [6] [ 14 ] There is nothing in the record in this appeal to explain why the trial judge attributed two months of delay between May and November to the defence. There is also no explanation of the legal foundation upon which she could assert a discretion to do so. The exercise of such a discretion in these circumstances would appear to be foreclosed by Jordan .

Accordingly, it was an error for the trial judge to attribute two months of delay to the defence for the period between May and November 2017. [ 15 ] The error has significant consequences for the disposition of the present appeal. If 6.5 months are properly subtracted from the starting-point of 20 months and 11 days, that leaves a working total of 14 months. Even if the 3.5 months of delay in the first period of delay are not attributed to the defence, there remaining net delay falls within the presumptive ceiling established in Jordan .

Accordingly, it cannot be argued that the decision of the trial judge to dismiss the motion under

section 11(

b) was an error or that the Superior Court erred in dismissing the appeal. [ 16 ] In view of the conclusions stated in the preceding two paragraphs, it is unnecessary to consider the other grounds submitted by the appellant. FOR THESE REASONS THE COURT: [ 17 ] DISMISSES the appeal. GUY GAGNON, J.A. PATRICK HEALY, J.A. MICHEL BEAUPRÉ, J.A. Mtre David Anber DAVID ANBER’S LAW OFFICE For appellant Mtre Eve-Lyne Goulet DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For respondent Date of hearing: 28 October 2020