2022 QCCA 1561, 2022 QCCA 1561

Unofficial Translation of the Judgment of the Court Poitras c. R. 2022 QCCA 1561 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTRÉAL No: 500-10-007165-192 (500-01-082019-123) DATE: November 18, 2022 CORAM: THE HONOURABLE GUY GAGNON, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. GUILLAUME POITRAS APPELLANT – Accused v.

HIS MAJESTY THE KING RESPONDENT– Prosecutor and ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL–LAVAL– LONGUEUIL INTERVENER JUDGMENT WARNING: Pursuant to ss. 486.4(1) and (3) of the Criminal Code , the Court of Qu ébec , District of Montréal, made an order directing that any information that could identify the victim or any person mentioned in a written document that constitutes child pornography within the meaning of s. 163.1 of the Cr.C . shall not be published in any document or broadcast or transmitted in any way. [ 1 ] The appellant is appealing a judgment of the Court of Québec, Criminal and Penal Division , District of Montréal (the Honourable Lori Renée Weitzman), rendered on February 2, 2017, [1] dismissing in part a motion for a stay of proceedings based on s. 11(

b) of the Charter . [ 2 ] For the reasons of Cournoyer J.A., with which Gagnon and Baudoin, JJ.A. concur, THE COURT : [ 3 ] DISMISSES the appeal; and [ 4 ] ORDERS the appellant to surrender to the prison authorities by November 23, 2022, at 3:00 p.m. GUY GAGNON, J.A. GUY COURNOYER, J.A. CHRISTINE BAUDOUIN, J.A. Mtre Gabriel Babineau

DESJARDINS CÔTÉ For the Appellant Mtre Marianna Ferraro DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For the Respondent Mtre Laurence Juillet St-Jean BATTISTA TURCOT ISRAEL Mtre Morgane Laloum For the Intervener Date of hearing: October 24, 2022 REASONS OF COURNOYER, J.A. [ 5 ]

Section 11(

b) of the Charter protects the right of a person who is charged with an offence to be tried within a reasonable time. A person is “charged” within the meaning of s. 11(

b) if they have been formally charged. [ 6 ] The appellant’s appeal raises the following issue: when does the constitutional clock start running when an accused is ordered at a preliminary inquiry, under s. 548(1) (

a) of the Criminal Code , to stand trial on added counts – from the date of the original information or from the date the accused is ordered to stand trial? [ 7 ] A person is charged with an offence within the meaning of s. 11(

b) of the Charter from the date they are ordered to stand trial on new counts. Thus, if the delay is calculated from the date the appellant was ordered to stand trial, the delay is consistent with the Jordan ceilings, regardless of which ceiling applies. [ 8 ] For the following reasons, I would dismiss the appeal. The facts [ 9 ] On November 28, 2012, the appellant went to a restaurant to meet a 14-year-old girl that he met on a social network. That young girl, however, was an undercover police officer posing as a minor as part of a cybersurveillance operation led by the Sûreté du Québec. The appellant was arrested and charged with child luring (s. 172.1(2)(

a) Cr. C .) and with making child pornography (s. 163.1(2)(

a) Cr. C .) in an information laid that same day. [ 10 ] Following the appellant’s arrest, the seizure of the appellant’s computer was authorized by search warrant. The analysis of the computer led to the addition of 37 counts, once again for child luring and making child pornography, committed between June 27, 2010, and November 26, 2012. Procedural history of the case [ 11 ] On November 28, 2012, the appellant appeared before the Court of Québec. On May 24, 2013, the appellant elected to be tried by a judge and jury and requested a preliminary inquiry, which was scheduled for June 17, 2014.

The matter was adjourned several times. [ 12 ] On May 12, 2014, the prosecution sent an email asking to postpone the preliminary inquiry in light of the additional evidence uncovered during the police investigation that led to the addition of numerous counts to the two counts laid in the original information. [ 13 ] On December 2, 2014, the preliminary inquiry was scheduled for September 28, 2015, and the appellant received a copy of all the charges that same day. [ 14 ] The preliminary inquiry, which was based on the information laid on November 28, 2012, was eventually held on June 3, 2016, a little over a month before Jordan was rendered. [ 15 ] On that day, the appellant was ordered to stand trial on the 2 original counts as well as on the 37 additional counts. [ 16 ] On November 22, 2016, the appellant announced that he intended to bring a motion to stay the proceedings under s. 11(

b) of the Charter. The hearing on the motion took place before a case management judge on January 19, 2017. [ 17 ] On February 2, 2017, the case management judge ordered a stay on the 2 counts originally laid against him but dismissed the

motion with regard to the 37 new counts because the calculation of the delay for those counts started from the date the appellant was ordered to stand trial. [2] [ 18 ] The appellant was found guilty on all counts on August 21, 2019. [3] On September 19, 2019, he appealed the decision dismissing in part his motion for a stay of proceedings. [ 19 ] The sentence was rendered on June 16, 2020. [4] The judge imposed a global sentence of 4 years’ imprisonment, along with various ancillary orders. [ 20 ] On June 17, 2020, the Court allowed the appellant’s motion for release pending the appeal. [5] The trial judgment [ 21 ] In a carefully reasoned decision, [6] the judge outlined the relevant facts and the law applicable to calculating the delay between the charge and the anticipated end of trial. [7] After discussion with the parties, the judge set May 5, 2017, as the anticipated end of trial date for the purposes of calculating the total delay. [8] [ 22 ] The trial judge considered the two sets of counts separately.

First, she considered the 2 counts laid in the original information, and second, the 37 counts added at the preliminary inquiry. [9] [ 23 ] For the two counts laid on November 28, 2012, she held that there was no ambiguity as to when the appellant was charged within the meaning of s. 11(

b) of the Charter , as that date corresponded to the date the information was laid in November 2012. The total delay between the charge and the anticipated end of trial was 53 months. [10] [ 24 ] As for the 37 other counts, the judge noted the common position of the parties that the delay began to run for those counts in November 2012, since the prosecution chose to add those counts at the preliminary inquiry rather than charging the appellant in a new information. [11] [ 25 ] However, the judge correctly explained that she was not bound by this concession on a question of law. [12] [ 26 ] According to the judge, s. 11(

b) of the Charter applies only to persons “charged with an offence”. [13] [ 27 ] Applying Kalanj , the appellant was not charged with the 37 counts until he was ordered to stand trial on June 3, 2016. [14] As a result, the total delay between the charge on the 37 new counts and the anticipated end of trial was11 months. [15] [ 28 ] That being said, the judge noted, and rightly so, the appellant's lack of eagerness to move his case forward: [ translation ] [17] For the counts added on June 3, 2016, the total delay of 11 months is well below the ceilings established in Jordan , even before deducting delay attributable to the defence.

Mr. Poitras’ lack of eagerness to stand trial is apparent in the choices he has made since the prosecution announced there would be more charges to come. Although he has been in possession of full disclosure on all charges – the original charges and those to come – since February 2015, he has not taken any steps to expedite the proceedings. He waited until the date of the preliminary inquiry to agree to the prosecution’s evidence and to consent to stand trial.

This Court does not criticize him for having done nothing during this entire period, as the parties have clearly demonstrated that they had numerous discussions before June 3, 2016. Nevertheless, Mr. Poitras did not take any steps to mitigate the delay (e.g., by bringing forward the date to waive the preliminary inquiry), nor has he asserted his right to a speedy trial.

This is not a case of unreasonable delay. [Emphasis in original] [ 29 ] As regards the two original counts, the judge held that the delay was unreasonable and ordered a stay of proceedings. [16] The prosecution conceded that the delay exceeded the ceiling of 30 months and that there were no exceptional circumstances. [17] Even applying the transitional exceptional circumstance, the delay was not justified.

The parties had showed [TRANSLATION] “complacency if not complete disregard regarding the delays since the beginning of the proceedings”. [18] Issues [ 30 ] The appellant submits two questions to this Court that I have reformulated as follows to clarify their scope: 1. Did the trial judge err in dismissing the motion to stay the proceedings? 2.

Was the appellant’s trial held within a reasonable time? [ 31 ] The first ground of appeal requires this Court to determine if the calculation of delay starts from the date of the original information or from the date the accused is ordered to stand trial when an accused is ordered to stand trial on added counts at a preliminary inquiry. [ 32 ] The second ground of appeal, raised by the appellant for the first time on appeal, is the unreasonableness of the delay between the dismissal of his motion to stay the proceedings and the end of his trial.

Did the trial judge err in dismissing the motion to stay the proceedings?

Position of the Appellant [ 33 ] The appellant maintains that, for the 37 counts laid in June 2016, the delay should run from the date of the original information in November 2012 because he was subject to the judicial process in the intervening period, as conceded by the prosecution during the hearing on the motion. [ 34 ] The appellant relies primarily on Guimont , [19] a decision of this Court that he submits stands for the proposition that where charges are intimately related, they should have the same starting point in terms of calculating the delay, even if they stem from different summons. [ 35 ] Moreover, the appellant argues that the judge’s reasoning opens a Pandora’s box as it allows for different starting points for determining the charging date.

A separate analysis would be required to determine which charges stem from the same evidence, bringing a high level of uncertainty. Position of the Prosecution [ 36 ] The prosecution is of the view that the judge did not err in calculating the delay with respect to the counts brought against the appellant in June 2016. [ 37 ] According to the prosecution, the appellant is on the wrong track in asserting that the expectation of imminent charges, coupled with existing charges, subjects him to the judicial process and thus affords him the protection of s. 11(

b) of the Charter , as this approach was explicitly rejected in Kalanj. Position of the Intervener [ 38 ] The intervener, the Association des avocats de la défense de Montréal-Laval-Longueuil, argues that the reasoning adopted by the trial judge creates an environment conducive to abuse by the prosecution and is inconsistent with Jordan in that it perpetuates a culture of complacency towards judicial delays.

Indeed, a prosecutor seized with a case that is becoming increasingly complex could strategically wait for the preliminary inquiry to add new counts and thus benefit from the clock being reset to zero, even if the evidence was available beforehand.

There are few guarantees that abuses will not occur under the new framework proposed by the judge, especially since the burden on an applicant in this respect is onerous. [ 39 ] The intervener also suggests that the judge's decision is not in line with the case law across Canada from various trial or appellate courts holding that the starting point for calculating delay is the date of the original charge, even when counts are added at the preliminary inquiry.

Rebuttal of the Prosecution to the Position of the Intervener [ 40 ] On November 12, 2021, the Court authorized the prosecution to respond to the intervener's factum. [ 41 ] First, the prosecution maintains that the decision of the case management judge does not encourage a culture of complacency, since all the scenarios envisaged by the intervener that could lead to abuse are protected under s. 7 of the Charter .

The decision is consistent with Kalanj and Jordan and removes any uncertainty by keeping the charge as the starting point for calculating the delay. [ 42 ] Second, the prosecution notes that the intervener’s position is not supported by the case law, since there are no decisions directly on point, and the various decisions on which the intervener relies can be distinguished. ANALYS IS [43]

Section 11(

b) reads as follows:

Proceedings in criminal and penal matters 11 Any person charged with an offence has theright … (

b) to be tried within a reasonable time; Affaires criminelles et pénales 11 Tout inculpé a le droit : […]

b) d’être jugé dans un délai raisonnable; […] The concept of a “person charged with an offence” [44] To fully understand the appellant's argument that the delay on the counts added in June 2016 at the preliminary inquiry runsfrom the laying of the original information in November 2012, it is necessary to revisit the case law interpreting what it means to be aperson charged with an offence under s. 11 of the Charter and the calculation of delay under s. 11(b). [45] By returning to basic principles, it will be established that the appellant is proposing an expansive

interpretation of what it meansto be a person charged with an offence, which was clearly rejected by the Supreme Court on two occasions, an

interpretation recentlyreiterated in J.F.[20] [46] In Mills,[21] Lamer J., dissenting, suggested that a person could, in certain circumstances, be “charged” prior to the actual chargefor which they are being prosecuted.[22] The majority did not express an opinion on this point. [47] In Carter,[23] rendered the same day, Lamer J., this time speaking for the majority, referred to his minority opinion expressed inMills. He reiterated his view that the charging date could, in exceptional circumstances, begin before the actual charge.[24] He wrote asfollows: As I have indicated in Mills v.

The Queen, (SCC), [1986] 1 S.C.R. 863, which has been handed down this same day, thetime frame to be considered in computing trial within a reasonable time generally runs only from the moment a person is charged. Inpassing, I might add that I say "generally" because there might be exceptional circumstances under which the time might run prior to theactual charge on which the accused will be tried. As an example, if the Crown withdraws the charge to substitute a different one but forthe same transaction, the computation of time might well commence as of the first charge.

This is not in issue here and reference to thissituation is only illustrative of my resort to the word "generally". Consequently, the period running from April 3, 1980 to January 28,1983, should not have been taken into consideration when assessing the reasonableness of the delay under s. 11(b).[25] [48] The Supreme Court revisited the meaning of the term “charged” in Kalanj.[26] In that case, the appellants argued that theSupreme Court in Carter had adopted the extended

interpretation of the word “charged” advanced by Lamer J. in Mills. [49] The context of the debate in Kalanj is important because there are significant parallels between that case and the proceduralhistory of the appellant’s case. Moreover, in that decision, McIntyre J. carefully circumscribed the meaning of being “charged” fromwhich this Court should not depart. [50] In Kalanj, the accused were arrested, fingerprinted, and released the same day. The accused were told not to leave the city andwere also told that charges would be brought against them.

The accused were eventually charged in an information sworn over eightmonths after their arrest and release from police custody. [51] On those facts, the Supreme Court had to decide whether the calculation of delay started from the date of their arrest or from thedate the information was sworn against them. [52] McIntyre J., writing for the majority, held that “Carter supports the view that pre-charge delay is not a factor for considerationunder s. 11(b)”.[27] [53] He dismissed the idea that “the word 'charged' should be given a flexible definition, one which would vary depending on the circumstances of the particular case”[28] and concluded that “a person is ‘charged with an offence’ within the meaning of s. 11 ofthe Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn”.[29] [54] McIntyre J. also clarified that while the purpose of s. 11 is to protect the liberty and security interests of persons accused ofcrime, it “does so within its own sphere” ,[30] that is, after being formally charged.

[55] After analyzing the text of s. 11 of the Charter, McIntyre J. confirmed that the wording of the provision is clear and should notbe distorted to include pre-charge delay:

Section 11 affords its protection after an accused is charged with an offence. The specific language of s.11 should not be ignored and themeaning of the word “charged” should not be twisted in an attempt to extend the operation of the

section into the pre-charge period. Thepurpose of s. 11(

b) is clear. It is concerned with the period between the laying of the charge and the conclusion of the trial and itprovides that a person charged with an offence will be promptly dealt with.[31] [56] He also noted the pitfalls in assessing pre-charge delay due to the unpredictability of the length of the investigatory period, andhe reiterated that the protection of s. 11(

b) is limited to the post-information period: The length of the pre-information or investigatory period is wholly unpredictable. No reasonable assessment of what is, or is not, areasonable time can be readily made. Circumstances will differ from case to case and much information gathered in an investigationmust, by its very nature, be confidential. A court will rarely, if ever, be able to fix in any realistic manner a time limit for theinvestigation of a given offence.

It is notable that the law -- save for some limited statutory exceptions -- has never recognized a timelimitation for the institution of criminal proceedings. Where, however, the investigation reveals evidence which would justify theswearing of an information, then for the first time the assessment of a reasonable period for the conclusion of the matter by trial becomespossible. It is for that reason that s. 11 limits its operation to the post-information period.

Prior to the charge, the rights of the accused areprotected by general law and guaranteed by ss. 7, 8, 9 and 10 of the Charter.[32] [57] Regarding the possibility raised by Lamer J. in Carter of considering pre-charge delay for the purposes of s. 11(

b) of theCharter, McIntyre J. rejected the idea that pre-charge delay is protected under s. 11(

b) of the Charter. Rather, he suggested that othersections of the Charter may be relied upon: It has been considered that special circumstances could arise which, in the interests of justice, would require some consideration of pre-charge delay because of prejudice which could result from its occurrence.

In my view, however, the exceptional cases should be dealtwith by reliance on the general rules of law and, where necessary, the other sections of the Charter.[33] [Emphasis in original] [58] In my view, it is significant to note that the fact the accused in Kalanj knew of the possibility of charges being laid against themdid not lead McIntyre J. to conclude that they were charged within the meaning of s. 11(

b) of the Charter before a formal charge waslaid. [59] In Potvin, Sopinka J. confirmed the necessity of being formally charged and recalled the findings in Kalanj: … Nonetheless, this Court held that the accused were not persons charged until a formal charge was laid and that s. 11(

b) did not apply.This judgment has been applied to rule out review of pre-charge delay unless the accused can establish a breach under s. 7. See R. v. L.(W.K.), (SCC), [1991], 1 S.C.R. 1091[34]. It follows from Kalanj that s. 11(

b) does not apply unless the restriction of the interests which the subsection protects results from anactual charge. Circumstances which produce the same consequences do not qualify for the protection of this provision unless thoseconsequences proceed from a formal charge.[35] [60] In Milani (2014), the Court of Appeal for Ontario set out an exception to the general rule as follows: [48] There is a caveat, however. There are circumstances in which unilateral state action may control whether or not charges arewithdrawn or re-laid.

In such circumstances, where the formal charge has been withdrawn with the intention of laying a new charge, oran information has been quashed with a new information laid, it makes sense to consider the entire period from when the first chargeswere laid as part of the s. 11(

b) analysis. In such circumstances, the person, although not formally charged during the "gap" period,remains subject to the judicial process, and his s. 11(

b) interests will continue to be affected by the knowledge or expectation that furthercharges are imminent. It is reasonable to conclude that he remains subject to the process of the court. That is precisely what occurred inR. v. Antoine. [49] For all of these reasons, I would interpret s. 11(

b) as being engaged during any period that an accused person is in fact subject tocharges, or when a person no longer actively charged remains subject to the very real prospect of new charges[36]. [61] The Court in Ketchate, after quoting these passages, wrote [translation] “[h]owever, in a case where the second information canbe equated with the first information, even if the accused has been released, they must have knowledge that they are still underinvestigation and that a new information may be laid against them”.[37] [62] That said, I note that the appellant does not rely on the exception set out in Milani; rather, he maintains that the counts added atthe preliminary inquiry are a continuation of the same judicial process that has continued uninterrupted since the original informationwas laid against him. [63] In the appellant’s view, s. 11(

b) requires that the calculation of the delay be the same for all the counts and he suggests that thiswas the position adopted by my colleague Bouchard J.A. in the following passages from Guimont: [translation] [31] The Court must then turn to the first step, which begins with calculating the total delay between the information or, if there is noinformation, the indictment and the actual or anticipated end of trial.

Applied to the case at bar, the Supreme Court’s holding leads thisCourt to conclude that the total delay that must be taken into account is the delay between September 15, 2011, the date of the firstinformation, and July 10, 2015, the date the jury rendered its verdict. This gives a total delay of 1,393 days or just over 46 months.

[32] The respondent suggests another way of calculating the total delay. Like the trial judge, she ends the computation of time on June1, 2015, which corresponds to the date the trial began. This is a mistake. The Supreme Court in Jordan, and recently in R. v.

Cody, madeit clear that the delay runs until the end of trial, not when it begins. [33] The respondent then argues that since the appellants were acquitted of the offence for which an information was laid onSeptember 15, 2011, the starting point for calculating the delay should be January 25, 2012, which was the date of the second summonsissued against the appellants.

The period of 132 days between September 15, 2011, and January 25, 2012 should therefore be deductedfrom the total delay. [34] A question arises, a priori, as to the appropriateness of retaining an indictment for which the appellants have been acquitted asthe starting point. However, doing so ignores the very situation of the appellants who, in concrete terms, faced three sets of charges thatwere closely related to each other and that stemmed from the same police investigation. In weighing the individual rights that s. 11(

b) ofthe Charter is intended to protect, including the right to security of the person, which addresses the anxiety and stigma associated withcriminal prosecution, I see no reason not to take September 15, 2011, as the starting point for calculating the delay. [Emphasis in original] [64] I will address the scope of Guimont a bit further below, but I will note at this point that I have a different

interpretation of thiscase than that proposed by the appellant. But first, I will conclude the overview of the case law necessary to resolve this appeal. [65] In 2017, the Supreme Court in Hunt[38] confirmed that pre-charge delays engage s. 7 of the Charter, not s. 11(b).[39] [66] Finally, in the recently rendered decision in J.F., [40] the Supreme Court confirmed that a formal charge is required. Wagner C.J.commented as follows: [23]

Section 11(

b) protects an accused only while they have the status of a person charged with an offence (R. v. Potvin, (SCC), [1993] 2 S.C.R. 880, at p. 908). The term “person charged with an offence” has been interpreted broadly by this Court andrefers to a person who is the subject of criminal proceedings (R. v. MacDougall, (SCC), [1998] 3 S.C.R. 45, atparas. 11-13). A person is charged with an offence from the time the charge is laid (R. v.

Kalanj, (SCC), [1989] 1 S.C.R.1594, at p. 1602; Potvin, at p. 910) until the final resolution of the matter and the end of the sentencing process (MacDougall, atparas. 10 and 17-18; R. v. K.G.K., 2020 SCC 7, at paras. 26-27). On appeal, an accused is no longer a person charged with an offence(Potvin, at pp. 911-12; MacDougall, at para. 17). The accused reverts to this status only if the trial decision is set aside and a new trial isordered (Potvin, at p. 912). [24] While s. 11(

b) protects an accused throughout the period when they have the status of a person charged with an offence, theframework established in Jordan has a limited temporal scope. The presumptive ceilings apply only to delay in holding the trial. [Emphasis in original] [67] In short, since Kalanj, there is no ambiguity as to when the calculation of the delay starts for the purposes of s. 11(

b) of theCharter: it is when there is an actual charge and not a possible charge, even if the accused is aware of this eventuality. [68] All parties acknowledge that there are no decisions directly on point. [69] I now turn to Guimont, on which the appellant relies.

The appellant misunderstands the scope of this decision. [70] Guimont, which preceded J.F., did not address what it means to be a “person charged with an offence”, nor did it address thesituation of an accused who is ordered to stand trial on added counts at a preliminary inquiry. [71] Guimont addressed the situation of accused who faced [translation] “three sets of charges that were closely related to each otherand that stemmed from the same police investigation”.

On those particular facts, the Court concluded that the starting point forcalculating the delay was when the first summons was issued but not the second. [72] With respect for the contrary view, Guimont does not apply because the appellant’s legal situation is completely different. [73] On the one hand, the new counts are new charges within the meaning of s.11(

b) of the Charter.[41] In fact, the judge who ordersan accused to stand trial for any other indictable offence in respect of the same transaction must, as was done in the case at bar,[42]endorse on the information the new charges on which the accused is ordered to stand trial.[43] [74] On the other hand, there is an important nuance to be made. Although the appellant was formally ordered to stand trial under s.548(1)(

a) of the Criminal Code, the added counts did not relate to offences in respect of the same transaction within the meaning of thecase law,[44] which further distinguishes the case at bar from the facts in Guimont. In any event, if the prosecution had chosen instead tolay a new information for the offences that were unrelated to the original offences, the calculation of the delay would start from date thatnew information was laid. [75] In my view, the order to stand trial was on new charges that were not in respect of the same transaction within the meaning of s.548 of the Criminal Code. [76] Although the order to stand trial was grounded in s. 548(1)(

a) of the Criminal Code (albeit wrongly and without a full debate),this does not change the legal characterization of the “real and concrete situation” of the appellant, in the words used in Guimont. Thesewere new charges for the purposes of s. 11(

b) of the Charter. [77] As a result, the case management judge did not err in holding that the appellant was a person charged with an offence within themeaning of s. 11(

b) of the Charter on the date he was ordered to stand trial, as these were new charges. In addition, the new counts were

not in respect of the same transaction, but rather, were in respect of discrete and independent offences that were unrelated to the original charges, other than being offences of a similar nature. [78] The judge was therefore correct in dismissing the appellant’s motion for a stay of proceedings, since the net delay was 11 months. Was the appellant's trial held within a reasonable time? [79] As I previously noted, the appellant is asking this Court to consider for the first time on appeal the reasonableness of the delay following the dismissal of his motion for a stay of proceedings.

He asks this Court to find that his trial was not held within a reasonable time.

Positions of the Parties [80] The delay between the order to stand trial (June 3, 2016) and the end of the trial (May 3, 2019) is 35 months (1,064 days). [81] The only point of disagreement between the parties relates to two different periods of time: (1) the availability (or unavailability) of counsel for the appellant (101 days); and (2) the delay between the second trial date being set down and the start of the trial (277 days) . [45] [82] Thus, there is a difference of just over 12 months between the parties in the calculation of the net delay. [83] The appellant maintains that there is a net delay of 24 months and 18 days, exceeding the applicable (in his view) ceiling of 18 months, while the prosecution calculates a net delay of just over 12 months, which in its view justifies the dismissal of the motion for a stay of proceedings regardless of the applicable ceiling.

ANALYSIS Should the Court consider the appellant's second ground of appeal? [84] The appellant seeks a stay of proceedings from this Court for the delay following the dismissal of his motion for a stay of proceedings by the case management judge on February 2, 2017. [85] According to the principles articulated by Wagner C.J. in the recently rendered decision in J.F. , [46] the appellant should have sought a stay before the trial judge: “[a] motion for a stay of proceedings brought for the first time on appeal, without the trial judge having had an opportunity to consider its merits, should normally be dismissed”. [47] [86] As Wagner C.J. explained, "[a]s a general rule, this means before the trial is held" [48] because “by the time the trial dates are set, the parties are generally in a position to know whether the trial delay will exceed the applicable presumptive ceiling, and the defence can raise any concerns it may have”. [49] [87] That being said, “[i]t is not out of the question that, exceptionally, an infringement of the s. 11(

b) right will reveal itself only once the trial has begun. In such a case, the accused must also act proactively”. [50] [88] Moreover, if there is a material change in circumstances, the accused may ask the trial judge to revisit the decision dismissing an earlier motion for a stay of proceedings. [51] [89] In the case at bar, I believe that the appellant's motion could be dismissed on this ground alone.

This kind of late application should be strongly discouraged. [90] However, the prosecution does not argue it will be prejudiced by the appellant raising this argument for the first time on appeal, and it is not asking the Court to decline to rule on this ground for that reason alone. [91] There is a full appeal record before the Court ( including elaborate arguments in the factums) and no factual findings are required given the procedural history of this matter, other than for this Court to characterize the periods of delay.

Both parties had the opportunity to make submissions on this ground of appeal during the hearing. [52] [92] Finally, in light of Ste-Marie , [53] I prefer to rule on all the grounds of appeal presented by the appellant to which the prosecution was able to respond. The delay following the dismissal of the motion for a stay of proceedings [93] The periods of delay that must be assessed are as follows: (1) the unavailability of counsel for the appellant; and (2) the delay between the appellant's guilty plea (including the withdrawal of the plea) and the start of his trial.

(1) The unavailability of counsel for the appellant (101 days) [94] To summarize the procedural history of this matter, the appellant was ordered to stand trial on June 3, 2016. His motion for a stay of proceedings was dismissed on February 2, 2017, because the net delay was then 11 months. A trial date therefore needed to be set down. [95] The first dates available for a five-day trial were May 1 to 5, 2017. In her decision, the case management judge had set down the anticipated end of trial on those dates with the agreement of the parties.

[96] Even though these dates had been retained in the context of the motion for a stay of proceedings to calculate the total delay, when the time came to set down a date for trial, counsel for the appellant clearly stipulated that she "had already indicated that the week of May 1 was not suitable". The defence was therefore not available, and the start of the trial was set down for August 14, 2017. This delay is entirely attributable to the appellant (101 days). [54]

(2) The delay between the appellant's guilty plea and the start of his trial (434 days) [97] The appellant rightly concedes that the delay between his guilty plea on August 14, 2017, and his plea withdrawal on November 21, 2017, is attributable to him (99 days). [98] He also acknowledges that the delay between the plea withdrawal and the date a new trial was scheduled must be deducted, because he expressly waived this delay (58 days). [99] However, he maintains that the delay between the time the trial date was set (January 18, 2018) and the start of the trial (October 28, 2018) cannot be attributed to him.

In his view, this was the first available date and there was no waiver on his part. [100] According to the prosecution, the entire delay between the guilty plea and the start of the trial must be deducted from the calculation of the delay because this entire period stemmed from the plea withdrawal and the need to

schedule a new trial date. [101] The prosecution also makes an analogy between a plea withdrawal and an order for a new trial, such that the clock must be reset to zero. Application of the Jordan ceilings: general framework [102] In light of the arguments presented by the parties, a brief overview of the Jordan principles is useful before determining the effect of the withdrawal of the appellant's plea in calculating the delay, an issue that has never been decided by this Court or by any other appellate court in the country. [103] First, the temporal scope of the protection guaranteed by s. 11(

b) of the Charter to the right to a trial within a reasonable time “extends beyond the end of the evidence and argument at trial, up to and including the date upon which sentence is imposed”. [55] [104] However, “the ceilings in Jordan , beyond which delay is presumed to be unreasonable under s. 11(b), apply to the end of the evidence and argument at trial, and no further.

They do not include verdict deliberation time”. [56] Thus, “[t]he presumptive ceilings apply only to delay in holding the trial”. [57] [105] Moreover, “[s]entencing proceedings are also excluded from the framework” [58] of Jordan . [106] Finally, if an appellate court orders a new trial, “[w]hen a new trial is ordered, the constitutional clock for calculating delay is reset to zero” [59] and the accused “cannot bring a s. 11(

b) motion during a retrial based on delay in their first trial” [60] . That does not mean, however, that “a court may not consider first-trial delay in assessing the reasonableness of retrial delay in certain exceptional circumstances”. [61] The delay resulting from a withdrawal of a guilty plea [107] How is the delay calculated when an accused withdraws a guilty plea? Is a plea withdrawal analogous with an order for a new trial as the prosecution suggests?

Is the constitutional clock also reset to zero in the case of a plea withdrawal? [108] The analogy made by the prosecution with an order for a new trial is flawed.

The answer to the appellant’s second ground of appeal lies in applying the Jordan framework (summarized in Cody [62] ), namely, by calculating the total delay and then calculating the net delay. [109] Under this framework, the total delay, that is, the delay between the laying of charges and the actual or anticipated end of trial must be calculated, and then any delay attributable to the defence must be subtracted. [110] The resulting calculation, the net delay, must then be compared with the applicable presumptive ceiling.

If the delay that is not attributable to the defence exceeds the presumptive ceiling, the delay is presumptively unreasonable, and it is up to the prosecution to demonstrate exceptional circumstances.

Consequences of a guilty plea [111] I will first address the consequences that usually flow from a guilty plea before assessing the impact of it being withdrawn on the calculation of net delay. [112] Normally, [ translation] “a guilty plea means that the accused waives his right to a trial, the presumption of innocence and, indirectly, his right of appeal because it constitutes an admission of all the essential facts of the alleged offence.

This also means that he waives the right to allege a violation of his constitutional rights”, [63] which include [ translation ] “[in] particular the right to a trial within a reasonable time". [64] [113] That being said, it is important to note that the [ translation] “entry of a guilty plea does not mean the person accepts a long pre- sentencing delay”. [65] [114] Now, what is the impact of the appellant's plea withdrawal on the calculation of the net delay? [115] Since a guilty plea must be “voluntary, unequivocal and informed”, [66] when the withdrawal of a guilty plea is granted, it is an acknowledgement that the plea is invalid.

Similarly, the appellant's waiver of his constitutional right to be tried within a reasonable time,

which is an integral part of the plea, was invalid, as said waiver must also be "clear and unequivocal". [67] [116] The right of an accused to be tried within a reasonable time, which is restored by the withdrawal of his plea, must be respected. The constitutional clock starts ticking again, and the net delay already accumulated as part of the proceedings against the accused cannot and must not be deducted.

The clock is not reset to zero, unlike the situation resulting from an order for a new trial. [68] [117] In these circumstances, the correct approach is to calculate the total delay and the net delay by subtracting the delay attributable to the accused. This must include the period of time between the appellant’s guilty plea and the withdrawal of his plea, which the appellant has acknowledged from the outset. [118] What about the delay between setting a new date for trial and the start of the trial? [119] The appellant is responsible for the delay in setting a new date for his trial.

Whether the delay is characterized as a defence delay or as discrete events that are "reasonably unforeseeable or unavoidable", [69] the delay before the appellant’s trial was finally held must be "deducted to the extent that it could not be reasonably mitigated by the Crown and the justice system”. [70] [120] After a plea is withdrawn, the time required to set a new trial date and for that trial to begin is unavoidable. [121] In Allen , Doherty J.A. of the Court of Appeal for Ontario addressed the issue of the delays that arose from the need to set aside new dates to complete a trial that could not be completed within the originally estimated time, a similar situation to the case at bar: When addressing s. 11(b), one must consider the inherent time requirements needed to get a case into the system and to complete that case: R. v.

Morin , supra, at p. 16. Those time requirements can include adjournments necessitated by the need to find additional court time when initial time estimates prove inaccurate …. The inherent time requirements needed to complete a case are considered to be neutral in the s. 11(

b) calculus. The recognition and treatment of such inherent time requirements in the s. 11(

b) jurisprudence is simply a reflection of the reality of the world in which the criminal justice system operates. No case is an island to be treated as if it were the only case with a legitimate demand on court resources. The system cannot revolve around any one case, but must try to accommodate the needs of all cases.

When a case requires additional court resources the system cannot be expected to push other cases to the side and instantaneously provide those additional resources. [71] [122] Although these comments were made under the Morin framework, they are still relevant. [72] The appellant cannot demand that the Court release him from an invalid plea and ask the Court at the same time to ignore the inevitable consequences that flow from being released from that plea. [123] Since this Court must set down a new date for trial, this will entail inevitable delays that are certainly attributable to the appellant because they were caused "solely or directly by the defence’s conduct”. [73] This deduction "is intended to prevent the defence from benefitting from its own “delay-causing action or inaction”. [74] [124] The appellant did not suggest that the prosecution or the justice system could have reasonably mitigated the inherent delays at the beginning of his trial [75] or that the delay was unreasonable even though it was below the ceiling. [76] [125] As suggested by the prosecution, the entire period of time between the appellant's guilty plea and the start of his trial must be deducted from the total delay, such that the net delay is slightly over 12 months.

It is therefore not necessary to determine which ceiling is applicable, because the question is hypothetical. [126] In closing, I note that the pace of the case does not demonstrate the appellant’s haste to ensure that his trial is held within a reasonable time . [127] Given these circumstances, I would dismiss the appeal. GUY COURNOYER, J.A. [1] R. c. Poitras, 2017 QCCQ 256 .