R. v. CIP Inc, 2016 QCCQ 12830

JW0192 Martin c. Director of Criminal and Penal Prosecutions Director of Criminal and Penal Prosecutions v. David Martin 2016 QCCQ 12830 COURT OF QUÉBEC CANAD A PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No : 500-61-414685-157 DATE: November 14, 2016 ______________________________________________________________________ BEFORE MADAM JOHANNE WHITE, PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ DAVID MARTIN Petitioner – Defendant v.

DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Respondent – Prosecutor ______________________________________________________________________ JUDGEMENT ON MOTION TO STAY PROCEEDINGS IN VIRTUE OF SECTIONS 7, 11(

B) AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ CONTEXT [ 1 ] The Petitioner was stopped by the Sûreté du Quebec on Highway 20 East on June 13, 2014 and was charged with an infraction under the Highway Safety Act. Specifically, it is alleged that the Petitioner committed

an act susceptibly endangering human life and property as per articles 327 and 512 of the Highway Safety Act [1] . [ 2 ] On February 17 th , 2015, the Petitioner received the statement of offence and was notified of the alleged infraction. [ 3 ] On February 27 th , 2015, the Petitioner filed a “NOT GUILTY” plea. [ 4 ] On August 19 th , 2015, the Petitioner received a “Notice of Hearing” for a first pro forma hearing of March 21 st , 2016. The pro forma hearing was held on March 21 st , 2016 and the case was set for trial on September 9 th , 2016.

QUESTIONS TO BE CONSIDERED [ 5 ] Is the framework from the Supreme Court’s decision in Jordan [2] applicable to regulatory and penal cases? [ 6 ] If so, does the delay in the present case infringe on the constitutional rights of the Petitioner as per Sections 7 and 11(

b) of the Canadian Charter of Rights and Freedoms and does the delay warrant a stay of proceedings as per Section 24(1) of the Canadian Charter of Rights and Freedoms. ANALYSIS APPLICATION TO REGULATORY AND PENAL CASES [ 7 ] In R. v. CIP Inc ., the Supreme Court already decided that

section 11 (

b) of the Charter applies to regulatory and criminal offences [3] : If I understand that argument correctly, the Respondent is suggesting that because the Appellant was charged with a regulatory offence, the allowable timeframe for bringing it to trial should somehow be greater than it would be in other circumstances. I am not persuaded by that argument. The right to be tried within a reasonable timeframe is engaged when a person is "charged with an offence ".

The Charter does not distinguish between types of offences, and it seems to me that doing so for the purposes of assessing the reasonableness of delay would unduly stretch the principles of contextual analysis.

The interest of an accused in the availability and reliability of substantiating evidence will exist irrespective of the nature of the offence with which that person is charged. [ 8 ] Recently, the Québec Court of Appeal decided that the reasonableness of a delay must be considered even for minor offences [4] : [99] Selon le contexte, même les délais liés à des accusations portant sur des infractions pénales mineures peuvent sérieusement nuire à la réputation d’un individu ou lui causer de l’anxiété. À

titre d’exemple, une accusation d’infraction au Code de la sécurité routière peut causer un préjudice important à un chauffeur d’autobus scolaire qui pourrait être suspendu de son emploi en attente du résultat du procès ou qui pourrait perdre son emploi s’il est reconnu coupable. Les délais pour résoudre ces accusations au moyen d’un procès peuvent accroître ce préjudice et ajouter au stress qui en résulte. Par contre, la même accusation découlant du Code de la sécurité

routière et les mêmes délais pour tenir le procès pourraient avoir un effet préjudiciable négligeable à l’égard d’un autre individu. [100] Ainsi, s elon le contexte, les délais pour tenir le procès sur une accusation résultant d’une infraction pénale peuvent accroître la stigmatisation de l’inculpé, l’atteinte à sa vie privée et son angoisse résultant de perturbations dans sa vie sociale et professionnelle et même parfois familiale. Je le répète, tout dépend du contexte particulier en cause. [ 9 ] Consequently, the R v.

Jordan framework applies to regulatory and penal matters because by this decision, the majority sought uniformity and did not create different ceilings for more serious (or less serious) charges. [ 10 ] Furthermore, the Jordan approach no longer considers the prejudice suffered by the Defendant and the severity of the crime in the determination of whether or not a delay is unreasonable under

Section 11 (b). Therefore, the Court cannot decide that a defendant in regulatory cases usually does not suffer any prejudice since only in rare cases could he go to jail. Consequently, many decisions rendered before Jordan no longer apply [5] . APPLICATION FOR A STAY OF PROCEEDINGS [ 11 ] On September 9 2016, the trial date, Mr. MARTIN presented an application for a stay of proceedings alleging that the delay in this case infringed on Sections 7 and 11(

b) of the Canadian Charter of Rights and Freedoms and that the case should be stayed as per Section 24(1) of the Canadian Charter of Rights and Freedoms. The application referred to the Supreme Court of Canada’s decision in R. v. Jordan and contends that the delay in this case exceeds the 18 months presumptive ceiling pursuant to the new framework applicable to Sections 11(

b) and 24(1) of the Charter in the framework in Jordan for matters before a provincial court. [ 12 ] The Petitioner submits that the delay in the present case is 26 months and 27 days and that the burden shifts upon the Crown to rebut the presumption of unreasonableness on the basis of exceptional transitional circumstances. Furthermore, the Petitioner submits that no transitional exceptional circumstances justify the present case exceeding the 18 months presumptive ceiling. [ 13 ] The majority in Jordan held that delays are calculated from the date the charge was laid to the actual or expected end of trial.

The majority in Jordan also proposed a new framework with presumptive ceilings. The presumptive ceilings are 18 months for matters before a provincial court and 30 months for matters before a superior court [6] . Once the presumptive ceiling is exceeded, there is an automatic presumption that the delay is unreasonable [7] . The Crown may only rebut the presumption if it can establish one of two exceptional circumstances. The first circumstance is an unforeseen and reasonably unavoidable discrete event at trial.

The second circumstance is where the case is particularly complex based on the nature of the evidence or the nature of the issues [8] . The majority in Jordan emphasize that: “…the determination of whether circumstances are exceptional will depend on the trial judge’s good sense and experience” [9] . In addition, the ruling in Jordan and the new framework of presumptive ceilings are subject to a transition period and will be applied “…contextually and flexibly for cases currently in the system” [10] . APPLICATION TO THE PRESENT CASE [ 14 ] The calculation of the delay by the Petitioner is incorrect.

The calculation of the delay started with the service of the statement of offence on February 17 th , 2015 [11] and not on June 14 th , 2014 as is contented by the Petitioner in their Motion for a Stay of Proceedings. Thus, the length of the delay should be calculated from February 17 th , 2015 until the end of the trial on September 9 th , 2016. The delay is then approximately 570 days, close to the 18 months presumptive ceiling for a matter being tried before a provincial court.

The delay does exceed the presumptive ceiling by eleven days. [ 15 ] Even if the delay in this case exceeds the 18 months presumptive ceiling by eleven days, the transitional period must be considered. Hence, the transitional period applies presumptive ceilings contextually and flexibly, by taking into account institutional and systemic delay issues. [ 16 ] Taking into account institutional and systemic delays, the 570 days delay in this case does not breach Sections 7 and 11(

b) Charter of Rights of the Petitioner. The trial date was set in a pro forma hearing on March 21 2016, before the Supreme Court’s decision in Jordan . Since then, in cases like this one, the Director of criminal and penal prosecutions eliminated the pro forma hearing which served to communicate evidence to the defence, and to set a trial date convenient for both the defence and the prosecution. Since Jordan, the first date is now a trial date, and it is the defence’s responsibility to obtain the evidence before the trial.

By eliminating the pro forma hearing the Director of criminal and penal prosecutions thus reduced the delay before the trial, in a jurisdiction plagued by notorious institutional delays, mainly due to the lack of resources (number of judges and of courtrooms) and to the enormous amount of regulatory and penal cases to be tried. As stated by the majority in Jordan: [12] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues. Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov .

This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings. FOR THESE REASONS, THE COURT: [ 17 ] DISMISSES the Petitioner’s application for a stay of proceedings.

__________________________________ JOHANNE WHITE PRESIDING JUSTICE OF THE PEACE and JUDGE Me Mark Mastromonaco For the Petitioner Me Nicolas Glendenning For the Director of Criminal and Penal Prosecutions