2020 QCCA 1340, 2020 QCCA 1340

Unofficial English Translation of the Judgment of the Court Roberge c. R. 2020 QCCA 1340 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006839-185 (500-01-127883-151 SEQ. 016, 505-01-130337-153 SEQ. 006) DATE: October 19, 2020 ______________________________________________________________________ CORAM: THE HONOURABLE JACQUES J. LEVESQUE, J.A. ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A. ______________________________________________________________________ SAMUEL ROBERGE APPELLANT - Accused v.

HER MAJESTY THE QUEEN RESPONDENT - Prosecutor ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The appellant appeals from two judgments rendered from the bench on February 12, 2018, and July 20, 2018, by the Honourable Ann-Mary Beauchemin of the Court of Québec, District of Longueuil, dismissing his applications for a stay of proceedings alleging a breach of the right to be tried within a reasonable time. [ 2 ] The appellant contests the attribution of a period of 347 days between the date of his request for a preliminary inquiry and the date on which he waived his right thereto.

The judge attributed this period to the appellant, which allowed her to find that the net delay incurred was just over 22 months, well below the 30-month ceiling established by the Supreme Court of Canada in Jordan . [1] The appellant maintains that the judge erred in doing so. If this period were not attributed to him, the delay incurred would be just over 33 months, which exceeds the ceiling established in Jordan . [ 3 ] In any event, in this case, the transitional exceptional circumstance set out in Jordan and reiterated in Cody [2] justifies dismissing the appeal.

BACKGROUND [ 4 ] On May 11, 2015, the appellant was charged, along with 19 other individuals, in connection with offences relating to drug trafficking. At the time, he was represented by counsel. On May 21, 2015, he was released on conditions. [ 5 ] The file was postponed on several occasions until November 25, 2015, at which time new counsel appeared on behalf of the appellant. [ 6 ] On February 18, 2016, the appellant chose to be tried by a judge and jury and requested that a preliminary inquiry be held a short time later, with his co-accused.

The inquiry was scheduled to last seven days starting on January 30, 2017. [ 7 ] On January 30, 2017, new counsel appeared on behalf of the appellant and announced that the latter was waiving his right to a preliminary inquiry. [ 8 ] A first application to stay proceedings for unreasonable delays was presented on February 5, 2018, the first day of the trial. It was dismissed on February 12, 2018. The trial finally took place from February 12 to 16, 2018, after which the case was taken under advisement.

The judge was then absent for a time due to illness. [ 9 ] On June 5, 2018, the appellant brought a second application for a stay of proceedings for unreasonable delays. This second application was heard and dismissed on July 20, 2018. [ 10 ] The appellant was convicted on July 20, 2018. JUDGMENTS IN FIRST INSTANCE

[ 11 ] In her first judgment, rendered on February 12, 2018, the judge deemed that in light of the teachings of Cody , the 347-day delay between February 18, 2016, and January 30, 2017, arising from the request for a preliminary inquiry, was attributable to the appellant. She was of the view that the appellant would assuredly have received an earlier trial date had he not requested a preliminary inquiry scheduled for seven days only to then abandon his request for an inquiry on the very first day it was to be held.

This conduct showed a marked indifference for delays and a lack of cooperation with the respondent. [ 12 ] In addition, the judge felt that the appellant failed to prove significant prejudice arising from his conditions for release, which were allegedly too onerous.

He also failed to show that he had taken reasonable steps to expedite the proceedings, particularly in light of his refusal to make the usual admissions before trial was fixed, to shorten its duration. [ 13 ] In a second judgment, this one from July 20, 2018, the judge specified that the application before her was not an amended version of the application she had decided on February 12, 2018, but a new one, which required that new facts be proved to justify a different outcome from the earlier judgment, which the appellant also failed to do. [ 14 ] Indeed, the judge’s absence due to illness during her deliberations could not affect the calculation of the net delay because, first, she was of the view that the delay for deliberations is not included in the 30-month ceiling, as the Court explained in Rice , [3] and second, it was an exceptional circumstance within the meaning of this expression as used in Jordan and Cody . [ 15 ] The judge added that Rice did not exclude the possibility that delays caused by the hearing of a preliminary inquiry be attributed to the accused; instead, that judgment confirmed the discretionary power of the courts in this respect.

In this case, there is nothing that would justify revising the judgment rendered on February 12, 2018, attributing to the appellant the period of 347 days between the request for a preliminary inquiry and the date the request was abandoned. The judge therefore incorporated the reasons for her judgment rendered on February 12, 2018 in those of her judgment rendered on July 20, 2018. [ 16 ] In any event, even if this period were not attributed to the appellant, the judge deemed that the transitional circumstance set out in Jordan and Cody dictates that the application should be dismissed.

GROUNDS OF APPEAL [ 17 ] The appellant agrees that the 30-month presumptive ceiling set out in Jordan is the one that applies and raises only the two following grounds on appeal, that is, that the judge erred in law (

a) by attributing the delay caused by the preliminary inquiry request to the appellant and (

b) by applying the transitional circumstance.

ANALYSIS The analytical framework under Jordan [ 18 ] The first step of the new analytical framework under Jordan begins with calculating the total delay from the laying of charges to the actual or anticipated end of the evidence and argument, that is, when the involvement of the parties in the merits of the trial is complete, and the case is turned over to the trier of fact. [4] In this case, the appellant was charged on May 11, 2015, and the evidence and arguments closed on February 16, 2018, a period of just over 33 months. [ 19 ] Once the total delay is calculated, it is necessary to subtract the delay attributable to the defence.

The result of this calculation — the net delay — must then be compared to the presumptive ceiling that applies here, that is, 30 months.

The rest of the analysis depends on whether the remainder of the delay — the delay that was not caused by the defence — is above or below the presumptive ceiling. [5] [ 20 ] The only defence delay that can be deducted under this component is the one that is caused solely or directly by the accused and that flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges. [6] That being said, determining whether defence action is legitimate is not an exact science and is an issue that trial judges are uniquely positioned to gauge.

It is a highly discretionary decision, and appellate courts must show a correspondingly high degree of deference thereto. While trial judges must refrain from second-guessing the steps taken by the defence to respond to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [7] [ 21 ] If the net delay is below the ceiling, it is incumbent upon the defence to show the unreasonableness of the delay.

To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings, and (2) the case took markedly longer than it reasonably should have. [8] [ 22 ] If the net delay exceeds the ceiling, it is presumed to be unreasonable. To rebut this presumption, the Crown must establish the presence of exceptional circumstances, which are generally divided into two categories, that is, discrete events and particularly complex cases.

If the Crown fails to do so, the delay is unreasonable, and a stay of proceedings may follow. [9] [ 23 ] Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, it nevertheless remains possible to demonstrate that the transitional exceptional circumstance justified the delay. [10] Standard of review [ 24 ] The trial judge must follow the Jordan framework to determine whether there was a breach of the right to be tried within a reasonable time.

Failure to do so is an error of law. [11] That being said, it is up to the trial judge to assess the situation. [12] The Court, in Vallières , recently recalled the standard of review that applies to such cases. [13] [ translation ]

[67] The standard of review was reiterated by the Court in Gariépy : Characterizing the delay for the purpose of s. 11(

b) of the Charter is a question of law for which the standard of review on appeal is that of correctness; however, the factual observations underlying this characterization are subject to the standard of palpable and overriding error. [68] In R. c. Rice , this Court added: [ translation ] [150] All agree that an infinite number of nuances can be made in characterizing and attributing responsibility for a delay.

If the judge considers them, the Supreme Court urges courts of appeal to show deference. [69] Thus, this Court recently recalled that [ translation ] “while the characterization of the delay may constitute an error of law, its factual basis […] is not subject to the Court’s intervention”, unless [ translation ] “these conclusions have no factual basis or, in other words, they are the result of an unreasonable analysis of the evidence”. [70] An appellate court will intervene only [ translation ] “rarely on a decision by a trial judge assessing the prejudice”, which is [ translation ] “a question that could give rise to an error of mixed fact and law”. [71] With respect to the legitimacy of the defence actions, an appellate court must show great deference to trial judges who are, according to the wording of Jordan , “uniquely positioned to gauge the legitimacy of defence actions”. [72] The determination “of whether circumstances are ‘exceptional’ will depend on the trial judge’s good sense and experience”.

Thus, determining what constitutes a particularly complex case “falls well within the expertise of a trial judge”. The conclusions on the complexity of the case therefore merit great appellate deference. [73] Where the transitional circumstances applies, the Supreme Court writes, “[t]he analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case”. In R. c.

Rice , this Court described the appellate standard of review concerning the application of the transitional circumstance as follows: [ translation ] “Though the analytical framework must be followed correctly, the weighing of the different factors leading to a reasonable assessment and result are protected from appellate intervention”. [References omitted.] Application to this case [ 25 ] In Rice , the Court concluded that delays for the preliminary inquiry will not generally be attributed to the defence, except in special circumstances: [14] [ translation ] [146] To come back to the prosecution’s argument that the respondents should shoulder all delays related to the preliminary inquiry, it would be puzzling if the preliminary inquiry stage itself could be entirely attributed to the defence and thus deducted.

This is not only a legitimate stage of proceedings provided for in the Criminal Code , but it also affects the ceiling presumed to be reasonable. Special circumstances would have to exist to oblige the defence to carry this delay. The trial judge did not exclude the notion that such situations may occur, but I am of the view that they will be rare . In the context of this case, the judge accepted what the respondents pled, namely, that the duration of the preliminary inquiry varied according to the evidence disclosed.

He noted that the appellant was not able to shed more light on these issues and concluded that the adjournments did not constitute illegitimate conduct. [Emphasis added.] [ 26 ] Do such special circumstances exist in this case? [ 27 ] According to the judge, requesting a preliminary inquiry merely to withdraw that request without any explanation several months later, just as the inquiry is set to begin, is contrary to the spirit of Jordan and Cody , which require a proactive approach from all participants, from the very start of the proceedings. [15] It is an interesting position but one that need not be validated in the context of this appeal given that the transitional provision sufficiently justifies dismissing the appeal. [ 28 ] Because this case is subject to the transitional provision under Jordan , even if the period of 347 days between the request for a preliminary inquiry and the waiving thereof was not attributed to the appellant, the judge could nevertheless conclude, as she did, that the application for a stay of proceedings should be dismissed on the ground that the parties had reasonably relied on the law as it previously existed. [ 29 ] As the Supreme Court unanimously pointed out in Cody : [16] [69] To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released.

In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed ( Jordan , at para. 96 ). The transitional exceptional circumstance should be considered in cases that were in the system before Jordan .

The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” ( Jordan , at paras. 96 and 98 ). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable” ( Jordan , at para. 96 ) . Additionally, some jurisdictions are plagued with significant and notorious institutional delays,

which was considered under Morin as well ( Jordan , at para. 97 ; Morin , at pp. 799-800).

For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable ( Jordan , at para. 96 ) . [Emphasis added.] [ 30 ] The judge readily concluded that the transitional provision applied given her finding of fact that the appellant had not established a determinative prejudice arising from the delay that narrowly exceeded the 30-month ceiling set out in Jordan : [17] [ translation ] Thus, the evidence of prejudice in the accused’s testimony appears to be quite tenuous to me, without saying that I do not believe him or that he lied to me, but his testimony has failed to convince me on the issue of showing that ultimately, the delays caused him prejudice, and I recall that the Supreme Court referred to three (3) objectives for that constitutional protection, which leads me to say that early in the process, the accused benefitted from a release, so he was not detained, he was not deprived of his liberty.

Yes, there were constraints, conditions to respect, but that is inherent to the type of charge, you know, when the charges are in connection with the sale of drugs, to have these types of conditions involved.

And so, while prejudice may be inferred from the mere passage of time, here, I recall that these are serious charges, and the evidence of actual prejudice appears tenuous to me, and therefore, I cannot accept that there is prejudice in connection with the delays, as opposed to constraints related to the charges themselves. [Text reproduced verbatim] [ 31 ] The judge’s decision to apply the transitional provision must also be understood in the context of the delays arising from the appellant changing counsel, which also justified finding that the net delay was below the 30-month ceiling.

Such delays may, depending on the circumstances, be attributed to the defence. [18] In fact, in this case, a long period of time was devoted to addressing an application for disqualification due to a conflict of interest that concerned the last counsel hired by the appellant to represent him — a delay that the judge attributed to the appellant: [ translation ] “[…] I mention it because I consider this also to be a source of delay, which could ultimately be attributed to defence action”. [19] [ 32 ] In short, the appellant’s actions, assessed as a whole, allowed the judge to find that he had little concern about delays and that, accordingly, he did not suffer prejudice.

Applying the transitional provision was therefore justified in this case. FOR THESE REASONS, THE COURT: [ 33 ] DISMISSES the appeal. JACQUES J. LEVESQUE, J.A. ROBERT M. MAINVILLE, J.A. GENEVIÈVE COTNAM, J.A. Mtre Jacqueline Sanderson MTRE JACQUELINE SANDERSON For the Appellant Mtre Geneviève Robitaille Mtre Magalie Cimon DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Hearing date: October 7, 2020