2015 QCCQ 9637, 2015 QCCQ 9637

A.E. c. R. 2015 QCCQ 9637 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LAVAL CITY OF LAVAL “Criminal Division“ N° : 540-01-058600-134 DATE : OCTOBER 6, 2015 ___________________________________________________________________ PRESIDED OVER BY THE HONORABLE JEAN-JACQUES GAGNÉ, J.C.Q. ___________________________________________________________________ A. E. Applicant v. THE QUEEN Respondent ___________________________________________________________________ DECISION ON AN APPLICATION UNDER SECTIONS 11

b) AND 24

(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS FOR STAY OF THE CRIMINAL PROCEEDINGS AS A RESULT OF AN UNREASONABLE DELAY IN PROCEEDING WITH THE APPLICANT’S MATTER ___________________________________________________________________ INTRODUCTION [ 1 ] The Crown charges the accused with sexual offences against a minor. [ 2 ] The actions for which the accused is charged occurred between 1996 and 2010. [ 3 ] The Crown charges the accused with the indictable offences pursuant to sections 151 , 152 , 153 (1) a), 271 (1) a), and 267

a) of the Criminal Code . [ 4 ] The presumed victim is the daughter of his ex-spouse. [ 5 ] The actions were unveiled in 2012 and the accused was arrested and released under a promise to appear on January 9, 2013. [ 6 ] The promise was confirmed on February 15, 2013 for a Court appearance on March 6, 2013. [ 7 ] The trial was set for September 1 st , 2015 and began with the hearing of a voir-dire concerning the motion pursuant to sections 11

b) and 24 (1) of the Canadian Charter of Rights and Freedoms filed by the accused. [ 8 ] The delay between the swearing in of the information sheet (February 15, 2013) and the filing of the motion is approximately 30 months and a half. [ 9 ] The Crown attorney asserts that this delay is not unreasonable and that it has not been demonstrated that the stay of proceedings should be ordered. [ 10 ] February 15, 2013: Swearing in of the information sheet and confirmation of the promise to appear. March 6, 2013: Court appearance of the accused and proceedings postponed to May 15, 2013 for orientation.

May 15, 2013: Proceedings postponed to June 18, 2013 to allow the accused to get an attorney. June 18, 2013: Appearance of the attorney, M e Charles Doucet. Proceedings to be resumed on September 30, 2013 to allow the counsel to take cognizance of the evidence. September 30, 2013: The defense requests that a preliminary inquiry be held. The Court sets it for March 10, 2014, at the parties’ request.

March 10, 2014: The preliminary inquiry takes place and the accused is ordered to stand trial on all counts and on an additional count related to

section 267 a). The file is set for trial to be held on October 22, 2014. October 15, 2014: The Crown files a request for a postponement due to the unexpected departure of the attorney representing the Director of Criminal and Penal Prosecutions for a leave of absence related to the adoption of a child. The request is not contested by the defense and is granted by the Court. The file is set for trial to be held on April 28, 2015. April 28, 2015: The case was postponed since the judge presiding the hearing did not feel at ease to hear a trial that would proceed in English.

The judge had also stated a possible overloading of the docket. The present Tribunal has not been informed about whether there was in fact a workload issue or if any attempt was made to transfer the file to another courtroom. The file was set for trial for September 1 st , 2015. One date at the end of July was offered to the parties, but it was refused by the defense, since counsel Doucet was not available due to his Summer vacation. September 1 st , 2015: Hearing of the motion for the stay of proceedings on grounds of unreasonable delay.

I- EVIDENCE SUBMITTD BY THE APPLICANT [ 11 ] The accused testified on the issue of the prejudice sustained. [ 12 ] He explained that he is under a stress imputable to the judicial proceedings. [ 13 ] He also explained that a judgment rendered by the Youth Division prevents him from seeing his 13-year-old son. [ 14 ] He indicated having been victim of violence by a family member of the complainant. [ 15 ] He stated that he has problems linked to high blood pressure as well as memory problems.

II- EVIDENCE SUBMITTED BY THE DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS [ 16 ] Police officer François-Guy Delisle testified to the effect that the accused was released following the signature of an undertaking with the specific condition of abstaining from communicating with the complainant. [ 17 ] The mother of his son X testified to the effect that the accused did not show up at several appointments that had been scheduled by the Youth Protection Director. [ 18 ] According to her, the contacts with the accused and his son X were left to the discretion of the Youth Protection Director as per their frequency and degree of supervision. [ 19 ] Also, according to the child’s mother, the accused had not had any contact with his son for more than one year.

Issues in dispute [ 20 ] Has there been an infringement of

section 11

b) of the Canadian Charter of rights and freedoms ? If the answer is yes, should proceedings be stayed? III- ANALYSIS [ 21 ] The principles applicable in this matter are well known. The Supreme Court in the judgments Askov [1] , Morin [2] and Godin [3] , and the Quebec Court of Appeal in the judgments Boisvert [4] , Camiran [5] and Jean-Jacques [6] have stated and taken up those principles. [ 22 ] The guidelines stated by the Courts with regard to the acceptable delays do not constitute a prescription period. They are rather a guideline.

A rigid application of those guidelines is to be avoided [7] . [ 23 ] These guidelines are a tool and their application is subordinate to the facts of the file under study [8] . [ 24 ] The criteria to be used to assess the reasonable or unreasonable nature of a delay for the accused to undergo his trial are: the length of the delay, the waiver, the causes of the delay, and the prejudice. Length of the delay [ 25 ] A period of 30 months and a half elapsed between the submission of the information sheet and the trial of Mr. E.. Waiver [ 26 ] There has been no global or partial waiver in the present file.

Reasons for the delay

[ 27 ] To ensure a good understanding of this file, I shall refer the reader to paragraph 10 of the present judgment which states the different stages as well as the date at which they took place. [ 28 ] The delay of 7 months and a half between the submission of the information sheet (February 15, 2013) and September 30, 2013, is inherent to the proceedings engaged.

The various steps within that delay were taken with reasonable diligence. [ 29 ] The delay of 5 months and a half, between September 30, 2013 and March 10, 2014 (date of the preliminary inquiry), is a delay which arises from an action on the part of the accused. Opting for a preliminary inquiry (which delays the date of the trial) entails an institutional delay. Without blaming Mr.

E., the exercise of his right to have a preliminary inquiry (the order to stand trial was not contested) generated delays for which he cannot legitimately complain to ask for a stay of proceedings [9] . [ 30 ] The delay of 7 months and a half, between the summons to trial and the first date scheduled for the trial (October 22, 2014) is an institutional delay. [ 31 ] The delay of 6 months between October 22, 2014 and April 28, 2015 stems directly from actions by the Crown and cannot be imputable to the accused.

Furthermore, the fact that the accused did not object to that request for a postponement is a factor to be considered. [ 32 ] The delay of 4 months, between April 28, 2015 and September 1 st 2015, is an institutional or systemic delay. Whether the file was postponed because the presiding judge did not feel “at ease” holding a trial in English or whether it was postponed due to an overloading of the docket, in both cases it seems obvious to me that it is an institutional delay.

Assessment [ 33 ] The total delay of about 30 months between the submission of the information form and the trial can therefore be explained as follows: - 7 months and a half as inherent; - 5 months and a half imputable to the accused; - 6 months imputable to the Prosecution with a tacit consent from the accused; - 11 months as an institutional or systemic delay. [ 34 ] The stay of proceedings is a remedy reserved to exceptional situations. [ 35 ] An accused who requests a stay of proceedings must demonstrate that the delay elapsed between the opening of the file and the date of the trial appears to be unreasonable. [ 36 ] On first sight, the delay may look significant. [ 37 ] Based on the analysis of these 30 months, I retain 11 months of institutional delays to which I add 6 months related to actions by the Prosecution.

We get a total slightly exceeding 17 months. [ 38 ] The inherent delays and the request for a preliminary inquiry (the order to stand trial which was not contested and was only used to question the young complainant) justify the remaining 13 months. [ 39 ] The Court considers that, in the case at hand, the acceptable delay proposed by the Supreme Court is slightly exceeded. Prejudice [ 40 ] Mr.

E. is free and his only condition is the prohibition to communicate with the complainant. [ 41 ] His prejudice is mainly related to stress and anxiety. [ 42 ] The other aspect of the prejudice which he claims to sustain, is related to the fact that a Youth Court judge forbade him from having contacts with his 13-year-old son for as long as the criminal file would be pending (as it appears on the judgment filed in support of the motion under exhibit R-2).

Paragraph 18 of the judgment states the following: “ Authorizes the Director of the Youth Protection to determine the contacts between X and his father, after the criminal charges are settled… “ [43] Even though it may seem somehow astonishing, this prohibition of contact with his minor son is surely related to the fact that the accused is charged with sexual offences against a child. [44] In this case, the burden of proving the prejudice sustained rests upon the accused. [45] The testimony of the mother of his son, X, the testimony of the accused, and the reading of the judgement rendered by the Youth

Court allow me to understand that the prejudice arising from the accused being forbidden of contact with his son is linked to the nature of the charges and not to the length of the delay. [46] The institutional delays imposed to the accused are not trivial. The prejudice that the accused sustains is related to the nature of the charges brought against him.

The delay of waiting for his trial will have little impact on the memory of the accused, since the events for which he is charged occurred between 1996 and 2010. [47] The sexual offences against young children provoke a strong social reprobation. [48] I have in mind the teaching of the Supreme Court where the two conflicting interests are described: 1- On one side: the interest of society in bringing the accused to trial; 2- On the other side: the right of a person charged with an offence to be tried within a reasonable time.

CONCLUSION Balancing the following factors: the length of the delay, the prejudices invoked placed into context, the societal interests of hearing the trial on its merits militate in favor of rejecting the motion for stay of proceedings. JEAN-JACQUES GAGNÉ, J.C.Q. M e Charles Doucet Attorney for the applicant M e Brenda Toucado Attorney for Criminal and Penal Prosecutions Date of hearing: October 6, 2015.