r v. CLARENCE NATACHEQUAN, 2022 QCCQ 3476

R. c. Natachequan 2022 QCCQ 3476 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF VAL-D’OR “Criminal and Penal Division” No.: 640-01-041396-186 DATE: May 25, 2022 ______________________________________________________________________ PRESIDED BY THE HONOURABLE RENÉE LEMOINE, J.C.Q. ______________________________________________________________________ THE QUEEN Prosecutor v.

CLARENCE NATACHEQUAN Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On February 25, 2022, the defense submitted an application to have the accused’s charge of sexual assault judicially stayed on the grounds that his constitutional right under

section 11(

b) of the Canadian Charter of Rights and Freedoms [1] (the Charter ) to be tried within a reasonable time had been infringed.

A judicial stay would stop this case and end the proceedings. [ 2 ] The Crown admits the delay and its classification as described in Annex 1, except for certain periods (December 19, 2019; March 31 and September 30, 2021). [ 3 ] The delays in the present case are described as follows: Date Steps Classification of the delay between this date and the following Comments Delay between this date and the following November 8th, 2018 Authorization Institutïonal 39 days (1 month 9 days) December 17th,2018 Appearance Institutional Exceptional circumstances Postponment due to the weather 98 days (3 months 8 days) Mars 25th, 2019 Appearance Institutional Exceptional circumstances Postponment due to the weather 1 day Mars 26th, 2019 Appearance Institutional Exceptional circumstances Postponment due to the weather 2 days

Mars 28th, 2019 Appearance Institutional Normal delay to review the evidence No express waiver of the delays 67 days (2 months 10 days) June 3d, 2019 Orientation Consensual postponement No express waiver of the delays 4 days June 7th, 2019 Orientation Institutional Choice has been made (judge of a provincial court) The trial has been fixed for a duration of 2 hours No express waiver of the delays 195 days (6 months 12 days) December 19th, 2019 Trial Consensual postponement on the « procès-verbal » but the reason is because the witness of the crown was not present.

The postponement must be at the request of the crown because the witnesses were unavailable No express waiver of the delays 102 days (3 months 11 days) March 30th, 2020 Trial Institutional Exceptional circumstances COVID-19 56 days (1 months 26 days) May 25th, 2020 Trial Institutional Exceptional circumstances COVID-19 128 days (4 months 5 days) September 30th, 2020 Trial Defense The accused was absent Warrant 1 day October lst, 2020 Pro Forma Defense Warrant quashed 74 days (2 months 13 days) December 14th, 2020 Trial Defense Me Germain was representing the accused and asked to be withdrawn of the file, because he quitted the profession.

No express waiver of the delays, the accused was ready to have his trial at that date 107 days (3 months 17 days) Mars 31st, 2021 Trial Institutional « Encombrement du rôle » No express waiver of the delays 61 days (2 months) May 31st, 2021 Pro forma (to fix a date) Defense There was no available date on last court date so we postponed to May 31 st to fix a trial date The accused was absent so we postponed the day after to make sure the accused would be present No express waiver of the delays 1 day

June lst, 2021 Pro forma (to fix a date) Institutional The accused was present so we fixed the trial date 121 days (3 months 29 days) September 30th, 2021 Trial Crown The main witnesses of the crown was absent As it was not the first time that witness was absent, the defense objected to the postponment.

The court agree to postpone the trial (voir notes du procès- verbal) 147 days (4 months 24 days) February 24th, 2022 Trial date fixed TOTAL DELAYS BETWEEN CHARGES LAID AND THE CONCLUSION OF THE TRIAL 1204 DAYS (39 months and 16 days) MINUS EXPRESS WAIVER OF THE DELAY 0 MINUS DEFENSE POSTPONMENT 182 days MINUS EXCEPTIONAL CIRCUMSTANCES DELAY 285 days THE NET DELAY IS SUPERIOR TO THE PRESUMPTIVE CEILING OF 18 MONTHS (presumptively unreasonable) 737 days (about 24 months) [ 4 ] The Crown acknowledges that even deducting the 182 days attributed to the defence, the net total delay is still 1,022 days, or approximately 34 months, which is over the 18-month celling applied in such cases.

The Crown submits, however, that exceptional circumstances contributed to the delay and challenges the presumption that the delay is unreasonable. [ 5 ] In Jordan , [2] the Supreme Court fixed an 18-month celling when the accused has elected to be tried by a provincial court. The Crown may show that exceptional circumstances justify the delay.

If the Crown cannot discharge this burden, then the Court will put an end to the case by entering a judicial stay of proceedings. [ 6 ] Exceptional circumstances are normally things not under the Crown’s control in that they are reasonably unforeseen or unavoidable and they cannot reasonably be remedied. [ 7 ] Jordan provides a list of what can be qualified as an exceptional circumstances. It is impossible to identify all circumstances that can cause delay. The determination of whether there are exceptional circumstances is a matter of common sense.

The Supreme Court in Jordan said that, in general, exceptional circumstances fall into two categories: discrete events and particularly complex cases. Where the exceptional circumstance relates to a discrete event, the delay attributable to that event is subtracted from the total delay. [ 8 ] Discrete events include things like an illness involving a key witness or participant in the trial, an unexpected event at the trial or the cancellation of the trial because of weather conditions or transport problems, as often happens up North. [ 9 ] What conclusions are to be drawn from the application of these principles?

ANALYSIS [ 10 ] The parties agree on the delay described, and there is no dispute in that regard except for the delays beginning on December 19, 2019, March 31 and September 30, 2021 and February 2022. [ 11 ] The Crown submits that there are exceptional circumstances for these delays. The delay from December 19, 2019 [ 12 ] On that date, the Crown’s witness was unavailable, and the case had to be postponed to March 30, 2020. The Crown submits that she was absent because she worked at Raglan Mines on a

schedule of 14 days of work and 14 days off. On December 19, 2019, she was at work. [ 13 ] The Court cannot consider the working

schedule of a witness as an exceptional circumstance. [ 14 ] In the judicial system, many witnesses must do what is necessary to be present in Court even if they work. The Crown did not provide any evidence of the witness’s attempt to make arrangement with his employer to be present in Court. [ 15 ] This delay must be considered to be a delay at the request of the Crown without exceptional circumstances.

The delay from March 31, 2021 [ 16 ] In regard to March 31, 2021, although “lack of time” or “ encombrement du rôle ” is entered in the minutes, the recording of the hearing that day reveals some additional elements. [ 17 ] At the beginning of the day, the accused requested a trial in person instead of a trial by videoconference. The pandemic prevented the itinerant Court from travelling to the northern community of Nunavik.

The judge refused the request and reminded the accused that all participants have a duty to ensure a trial within a reasonable time. [ 18 ] The case was called at 6:24 p.m. and the trial had to be postponed for lack of time. When the case was called, the accused was absent. He was there earlier that day but left before 6:24 p.m. [ 19 ] The case and the adjudication of a warrant was postponed to the next day. [ 20 ] The accused was present the next day. The trial did not proceed and was postponed to May 31, 2021. [ 21 ] Clearly this delay is due to a lack of time to proceed to trial.

The accused was present and his request to have his trial postponed to when the Court would travel to his community was not accepted by the Court. The case was called at the end of the day and postponed to the next day without any possibility of proceeding to trial. The delay from September 30, 2021 [ 22 ] On that date, the Crown’s main witness was absent. The Crown submits an exceptional circumstance because the witness was in Montreal accompanying her spouse who was undergoing medical treatment. [ 23 ] The Crown has not succeeded in demonstrating that the witness was in Montreal with her spouse on that date.

On the contrary, the evidence shows that her spouse was back in the community because he appeared in Court on September 31, 2021. [3] [ 24 ] This delay is also attributable to the Crown. The Court accepted the Crown’s request for postponement even though the defence objected. The delay from February 24, 2022 [ 25 ] On February 24, 2022, the Court did not travel because of public health guidelines due to the pandemic.

Although some participants attended by videoconference from the South, some travelled to the community to facilitate the functioning of the Court. [ 26 ] At the calling of the roll, the Crown asked to suspend the case because it had to verify the presence of its witnesses and speak with them. [ 27 ] The Court asked the Crown what its priorities were and reminded it that this case should be a priority because of the delay. [ 28 ] The Crown informed the Court that it had trouble locating one of the witnesses and had asked for help from the police department. [ 29 ] At the end of the day, the Crown attorney was told that all the witnesses had been present at the courthouse during the day, but she had not been informed. [ 30 ] This event showed that it is a particular challenge to conduct a trial remotely.

There is a lack of resources and, for an unknown reason, no CAVAC worker was there to facilitate contact between complainant, the witnesses and the Crown attorney. [ 31 ] Nevertheless, the Court must recall that it is the same situation for the defence attorney. He cannot be with his client or his witnesses in person.

Moreover, the accused asked the Court to have a trial in person and the Court declined this request in order to meet the Jordan timelines. [ 32 ] The Court should not refuse the accused’s request to hold a trial in person but excuse the Crown prosecutor for not being able to communicate with the witnesses at the trial. It is true that a remote trial is a challenge for all participants, but each of us must adapt to the situation and find a way to respect the Jordan framework.

Residents of Cree communities should not be asked to accept diminished rights in comparison with other Canadians. [ 33 ] The Court must acknowledge the problems the Crown had in meeting or speaking with its witnesses before the trial date, something that is particularly important in sexual assault cases, which require a sensitive approach.

It was impossible for the Crown to declare the case ready at the calling of the roll and it often missed the opportunity to proceed at the beginning of the day. [ 34 ] The lack of resources and the inability to proceed to trial impacted the capacity of the Crown to give priority to a trial in this case, even though it involves a serious offence and the delay was already problematic. Deliberations on the Charter motion [ 35 ] In R. v. K.G.K ., [4] the Supreme Court decided that the “verdict deliberation time” after the evidence and closing arguments at trial does not count toward the Jordan celling.

[ 36 ] The Supreme Court did not rule on the issue of interlocutory judgments. [ 37 ] In R . c . Rice , [5] the Court of Appeal of Quebec stated: [86] Je note ici, bien que la question ne soit pas directement soulevée par les pourvois, que les délibérés en cours d’instance qui freinent le procès et rendent, pour cette raison, le tribunal indisponible, peuvent constituer des événements distincts au sens auquel l’entend la Cour suprême. Ils peuvent également traduire la complexité des questions soulevées et donc, de la complexité particulière de l’affaire : R. c. Mamouni , 2017 ABCA 347 , par. 55 .

À cet égard, on peut se fier au bon sens et à l’expérience des juges et des avocats. [ 38 ] In Thanabalasingham , [6] the Court of Appeal of Quebec ruled that the deliberation time for interlocutory judgments should be deducted from the Jordan celling calculations. [ 39 ] The Court is of the opinion that the period for deliberation on the Charter motion is an exceptional circumstance that should be deducted in the calculation of the delay.

Application of the framework [ 40 ] The total time between the laying of the charge on November 8, 2018, and the anticipated end of the accused’s trial on February 24, 2022, is 1,204 days (39 months and 16 days). [ 41 ] The delay caused by the defence is 182 days (6 months and 2 days). [ 42 ] The exceptional circumstances delay of 285 days (9 months and 5 days) is to be subtracted. [ 43 ] The total delay is 24 months and 9 days. [ 44 ] The seriousness of the charge is no longer a factor to be considered. [7] [ 45 ] The Court concluded that the remaining delay, after subtracting defense delay and delay due to the COVID pandemic and other exceptional circumstances, exceeds the 18-month delay celling, such that the right of the applicant to be tried within a reasonable time according to

section 11(

d) of the Charter has been infringed. [ 46 ] The only remedy available for such a violation of the right to be tried within a reasonable time is a stay of proceedings. [ 47 ] The Court can understand that a stay of proceedings might be difficult to accept for the complainant.

Nevertheless, the Supreme Court of Canada has ruled that the violation of the right to be tried within a reasonable time will result in a stay of proceedings, whatever the circumstances. [8] FOR ALL THE ABOVE REASONS, THE COURT: [ 48 ] ORDERS the stay of proceedings for the charge of sexual assault on M.F. in the file 640-01-041396-186. __________________________________ RENÉE LEMOINE, J.C.Q. Mtre Annie-Claude Breton Counsel for the prosecution Mtre Andréanne Boutin Counsel for the accused Date of hearing: February 25, 2022