2011 QCCA 390, 2011 QCCA 390

R. c. Terk 2011 QCCA 390 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL NO. : 500-10-004371-090 (500-01-017551-950) DATE : MARCH 3, 2011 CORAM : THE HONOURABLE JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

HYMAN TERK RESPONDENT – Accused JUDGMENT [ 1 ] THE COURT : - On appeal from a judgment of the Court of Quebec, Criminal and Penal Division (the Honourable Judge Claude Millette) rendered on April 6, 2009, that allowed the respondent’s motion and ordered a stay of proceedings; [ 2 ] Having examined the file, heard the parties and on the whole deliberated; [ 3 ] For the reasons of Chamberland, J.A. with which Doyon and Duval Hesler, JJ.A. agree: [ 4 ] ALLOWS the appeal; [ 5 ] OVERTURNS the judgment on appeal; [ 6 ] DISMISSES the respondent’s motion to stay proceedings; [ 7 ] REMITS the matter to the trial judge for the continuation of the proceedings.

JACQUES CHAMBERLAND, J.A. FRANÇOIS DOYON, J.A. NICOLE DUVAL HESLER, J.A. Mtre Pierre Lévesque Criminal and penal prosecutor For the appellant Mtre Léonard Waxman WAXMAN DORVAL PERRON DEL NEGRO For the respondent Date of hearing: January 27, 2011 REASONS OF CHAMBERLAND, J.A.

[ 8 ] The issue on appeal concerns an accused’s right to be tried within a reasonable time, a right protected under

section 11(

b) of the Canadian Charter of Rights and Freedoms . THE FACTS [ 9 ] The facts are not contested. [ 10 ] The respondent is accused of committing fraud between November 1987 and August 1991. [ 11 ] Sergeant-Detective André Gaudreau met and questioned the respondent on December 7, 1994; he notified him he was under investigation for fraud committed against his employer, United Westburne Inc. [ 12 ] On March 17, 1995, the respondent left the country to go live in Israel. [ 13 ] On November 7, 1995, the respondent was formally charged with fraud under paragraph 380(1) (

a) of the Criminal Code . [ 14 ] Given his absence from Canada, he could not be served with the summons, and an arrest warrant was issued on January 18, 1996. [ 15 ] Some time later, Sergeant-Detective Gaudreau learned from the respondent’s mother that her son was now living in Israel.

He noted the address and telephone number where he could be contacted. [ 16 ] Extradition procedures were then commenced, but because Israel does not extradite its nationals the extradition never took place. [ 17 ] The years passed. [ 18 ] In September 2003, the respondent returned to the country without, for some inexplicable reason, being worried about the border officers. [ 19 ] After living in Montreal for a time, the respondent moved to Ontario. [ 20 ] On October 10, 2004, on the road to Montreal, the respondent was stopped for speeding.

During the routine check, the police discovered the arrest warrant issued almost nine years earlier. [ 21 ] On October 11, 2004, the respondent appeared in Montreal. He was immediately released after he deposited $500, provided his address, and undertook to notify the Court before changing address. [ 22 ] Sergeant-Detective Sylvie Lussier was assigned to reconstitute the Crown prosecutor’s file, which had been erroneously destroyed. She completed the work on September 1, 2005.

The file was remitted to Crown lawyers one week later, then to the respondent’s lawyer on September 13, 2005. [ 23 ] The preliminary inquiry was held on March 12, 13 and 14, 2007, following several adjournments requested by the respondent. [ 24 ] The respondent was sent to trial, but his lawyer at the time withdrew from the record. [ 25 ] Finally, after another series of adjournments requested by the respondent, his current lawyer appeared in the record on June 18, 2008.

He then asked that the case be postponed pro forma to September 15, 2008, so he could familiarize himself with the evidence. [ 26 ] On September 15, 2008, the trial was set down for one week beginning May 4, 2009, with a pre-trial conference on March 9, 2009, if necessary. The lawyer notified the Court of his intention to present a motion to stay proceedings. The motion, dated October 30, 2008, is supported by the lawyer’s sworn statement and a notice of presentation for February 19, 2009. [ 27 ] The motion was presented on that date as scheduled. The hearing proceeded smoothly.

The parties did not call any witnesses and filed the following three admissions: [ translation ] Exhibit R-1 On December 7, 1994, S D André Gaudreau of the S.P.V.M. (now retired) met and questioned Mr. Hyman Terk, advising him he was being investigated as a suspect in the present matter. Exhibit R-2 The November 7, 1995, summons could not be served, and after the arrest warrant for Mr. Hyman Terk was issued on January 18, 1996, S/D André Gaudreau of the S.P.V.M. (now retired) learned that the accused was in Israel.

The Crown Attorney of Quebec, in collaboration with the Department of Justice Canada, commenced extradition proceedings against Mr. Terk. Israel refused to cooperate and the extradition never took place. Exhibit R-3 In 2005, S/D Sylvie Lussier of the S.P.V.M. was assigned to reconstitute the file on Mr. Hyman Terk, which had been erroneously

destroyed. She completed the work on or around September 1, 2005, and submitted the fruits of her labour to the prosecution on oraround September 8, 2005. On September 13, 2005, a copy of the reconstituted file was sent to Mr. Terk’s lawyer, Mtre Joseph Eifassy. THE JUDGMENT UNDER APPEAL [28] Judgment was pronounced on April 6, 2009. [29] The trial judge first summed up the facts and concluded that the period to be considered for the motion to stay proceedingsextended from November 21, 1995 (date of the summons, according to his

summary of the facts),[1] to April 24, 2006 (date when theCrown finished disclosing its evidence to the respondent).[2] [30] The judge characterized this delay as very long, one of the longest he had ever witnessed, and summed up the Crown’sposition with the following two propositions: the delay was attributable to the respondent’s actions, and in any case, the latter sufferedno prejudice. [31] As regards the prejudice, the judge believed it was inferred from the circumstances of the case.

On October 10, 2004, therespondent learned that for nine years he had been accused of the events that took place between November 1987 and August 1991, but ittook nearly one year before he was able to know the Crown’s case against him and to assess it. It was impossible for him to adequatelyprepare his defence during all this time.

According to the judge, the delay caused the respondent stress; the judge inferred a prejudice hecharacterized as enormous. [32] As regards the cause of the delay, the judge refused to reproach the respondent for leaving Canada in March 1995, threemonths after he encountered Sergeant-Detective Gaudreau; according to him, nothing indicates he was told not to leave the country orthat the investigation might last another three months. [33] The judge criticized the authorities for not having tried to contact the respondent, directly or through his mother who lives inMontreal, even though some time after January 18, 1996, they knew how to contact him in Israel.

According to the judge, this wouldhave been less costly than commencing extradition proceedings and would have allowed the respondent to decide whether or not toreturn to Canada. [34] The judge concluded the system malfunctioned and the authorities were negligent: the police did not try to contact therespondent when it would have been easy to do so, the border authorities did not know about the arrest warrant or neglected to enforce itand lastly, the Crown file was erroneously destroyed. According to him, the prosecution is responsible for the long delay, and as a resultthe accused suffered an obvious prejudice.

THE ISSUES IN DISPUTE [35] The grounds for appeal can be summed up in two questions: 1) Did the judge erroneously impute responsibility for the delay between November 7, 1995, and April 24, 2006, to theprosecution? 2) Did the judge erroneously conclude that the respondent suffered a prejudice? ANALYSIS 1. The delay [36] Before addressing this question, it is necessary to review the factors to be considered in analyzing the length of anunreasonable delay. In R. v.

Morin, (SCC), [1992] 1 S.C.R. 771, Sopinka J., for the majority of the Court, writes at pages787-788: The general approach to a determination as to whether the right has been denied is not by the application of a mathematical oradministrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect againstfactors which either inevitably lead to delay or are otherwise the cause of delay. .... While the Court has at times indicated otherwise, itis now accepted that the factors to be considered in analyzing how long is too long may be listed as follows: 1. the length of the delay; 2. waiver of time periods; 3. the reasons for the delay, including (

a) inherent time requirements of the case, (

b) actions of the accused, (

c) actions of the Crown, (

d) limits on institutional resources, and (

e) other reasons for delay; and 4. prejudice to the accused.

[37] The Crown maintains it was erroneously imputed responsibility for the delay between November 7, 1995, and April 24, 2006,by the judge. [38] The respondent argues the Crown is wrong to focus on the entire period; a careful reading of the judgment reveals the judgedid not review the whole period, but only the delay as of his arrest on October 10, 2004. [39] I do not agree. For instance, the judge criticized the authorities for not having informed the respondent, after January 18,1996, about the offence with which he was charged, and of not having arrested him when he returned to Canada in September 2003.

Heconcluded the authorities are responsible for this long delay (“for the length of this delay”, at para. 24 of the judgment under appeal); thejudge was obviously alluding to the entire delay, that is from November 1995 to April 2006, and not solely to the period beginning withhis arrest on October 10, 2004, as the respondent alleges. [40] In this context, I feel there is no other choice but to examine the entire delay between November 1995 and September 2005(or, according to the judge, April 2006) and, in this regard, the respondent’s actions are an important analytic factor.

Neither the accusednor the Crown can use delays caused by their own actions to support their position. As noted by Sopinka J. in R. v. Morin, it is not aquestion of “blaming” the accused, but rather one of taking the “actions of the accused which are voluntarily undertaken” into account(R. v. Morin at 793). [41] In my opinion, the respondent is solely responsible for the delay incurred between November 1995 (date of the summons) andSeptember 2003 (date of his return to Canada).

If, as the trial judge noted, nothing prohibited him from leaving Canada and moving toIsrael for almost eight years, these nevertheless remain actions he “voluntarily undertook” three months after having met a police officerregarding a fraud of which he was suspected. [42] The criticism of the authorities for having been negligent because they resorted to extradition proceedings instead of trying tocontact the respondent, directly or through his mother, to inform him about the charges he faced, does not hold. [43] I do not see how, even taking all facets of the matter into consideration, we could demand that the authorities take steps otherthan extradition to inform an accused he is the subject of an arrest warrant when he has left Canada to live in a foreign country.[3] Imposing such an obligation would certainly not be without consequences; we could even imagine cases where the accused, informed bytelephone, letter or otherwise, about charges against him in Canada, would take advantage of this to move or change his identity, therebyrendering any future extradition proceedings much less effective. [44] R. v.

Delaronde, (SCC), [1997] 1 S.C.R. 213, in no way assists the respondent. In that matter, the motion tostay proceedings was founded on

section 11(

a) of the Charter, and not

section 11(b). The accused had not left Canada, he lived inKahnawake, which is why the Court faulted the Crown for not having used the services of the Peacekeepers to inform the accused aboutthe offence with which he was charged. [45] The rest of the period under review – that is, September 2003 to September 2005 (or April 2006) – can be divided in two:before October 11, 2004 (date of the appearance), and after. [46] The judge refers to the authorities’ negligence in not having intercepted the respondent when he returned to Canada inSeptember 2003. He is correct.

In theory, the border authorities should have realized there was an arrest warrant and acted accordingly.The evidence does not explain why this was not done. Furthermore, aside from this neglect, which I would characterize as singular, it isdifficult to fault the authorities for not having arrested the respondent prior to October 2004 because, since they did not know he hadreturned to Canada, he was not being actively sought. [47] The period after October 11, 2004, was dedicated to reconstituting the file, which, according to the admissions, had beenerroneously destroyed.

The judge affirms that the destruction of the investigative file reflects the authorities’ negligence in this case. Heis correct, but this situation only resulted in an eleven-month delay, from October 11, 2004, to September 13, 2005.

The respondent hadthe complete investigative file on hand at that date – except for some documents having to do with the electronic surveillance, irrelevantto the evidence, remitted to him on April 24, 2006 – and he could certainly have started preparing his defence. [48] After having deliberated, I conclude, with all due respect for the trial judge, that the delay attributable to the actions of theCrown is limited to the period from September 2003 to September 2005, that is, two years. [49] This is not, in my view, an unreasonable delay within the meaning of

section 11(

b) of the Charter. [50] In order to place this delay in perspective, one need only remember that more than three years passed between September 13,2005 (date when the respondent received the investigative file), and October 30, 2008 (date of his motion to stay proceedings), a periodtotally attributable to the actions of the accused. The respondent requested all the adjournments from September 2005 to March 2007,when he was represented by one lawyer, and then from March 2007 to June 2008, he was searching for another lawyer to take over fromthe preceding one. 2. Prejudice [51] In R. v. Morin, Sopinka J. writes, at page 786: The individual rights which the

section seeks to protect are: (1) the right to security of the person, (2) the right to liberty, and (3) theright to a fair trial. The right to security of the person is protected in s. 11(

b) by seeking to minimize the anxiety, concern and stigma of exposure to criminalproceedings. The right to liberty is protected by seeking to minimize exposure to the restrictions on liberty which result from pre-trialincarceration and restrictive bail conditions. The right to a fair trial is protected by attempting to ensure that proceedings take place whileevidence is available and fresh.

[ 52 ] It is up to the accused to prove prejudice, although it is possible in certain circumstances to deduce that prejudice exists because of the length of the delay. [ 53 ] In R. v. Morin , Sopinka J. writes, at page 801: …. Accordingly, in an individual case, prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.

In circumstances in which prejudice is not inferred and is not otherwise proved, the basis for the enforcement of the individual right is seriously undermined. [ 54 ] What have we here? [ 55 ] In his October 30, 2008, motion, the respondent does not allege any prejudice, other than the prejudice the Court should infer as a result of the long delay between November 1995 and October 2008 (at para. 28 of the motion). [ 56 ] The respondent did not enter a sworn statement in support of his motion nor did he testify during the motion hearing. [ 57 ] As I explained earlier, the delay attributed to the Crown is limited to the two-year period from September 2003 to September 2005.

In my view, this delay is not sufficiently long to support the deduction of considerable prejudice the respondent asks the Court to make, especially since, until October 10, 2004, he was unaware of all charges against him ( Peterson v. R . , J.E. 2007-838 (C.A.), 2007 QCCA 523 (C.A.) at para. 52 ). [ 58 ] The respondent does not claim any other prejudice. [ 59 ] It should be noted he was released immediately after his appearance on October 11, 2004, and that he was still at liberty when his motion to stay proceedings was presented in February 2009.

Therefore, there was no infringement of his freedom: he was not in prison or subject to any restrictive conditions whatsoever, other than to notify the court in the event of a change of address. [ 60 ] The judge concluded there was stress related to having learned that for nine years he had been accused of fraud, and that he had to wait nearly one year (from October 2004 to September 2005) before learning the Crown’s evidence.

It is a reasonable inference, but this prejudice, on the whole temporary, obviously cannot justify a measure as drastic as a stay of proceedings. [ 61 ] The same goes for the inference that he was deprived of the possibility of making full answer and defence because of this same delay. The delay at issue here is not the one that ran as of November 7, 1995, but the one from October 11, 2004, to September 13, 2005 (or, at the worst, to April 24, 2006).

In this context, I do not believe it is appropriate, without evidence, to conclude there was a violation of the respondent’s right to make full answer and defence. [ 62 ] In R. v. Godin , [2009] 2 S.C.R. 3, 2009 SCC 26 , the Supreme Court reinstated the stay of proceedings ordered by the trial judge due to the thirty-month delay between filing charges and the date for the beginning of the trial. The difference between that case and this one is that Mr.

Godin had alleged, and proved, that the delay caused him prejudice, particularly with regard to his ability to make full answer and defence Cromwell J. writes, at paragraph 39, “The length of the delay and the evidence supported the trial judge’s inference that some prejudice to the appellant resulted from the delay”.

In this case, the respondent has neither alleged any specific prejudice, nor offered any evidence whatsoever. [ 63 ] For the above reasons, I would overturn the judgment under appeal, dismiss the respondent’s motion to stay proceedings, and remit the matter to the trial court for the continuation of the proceedings. JACQUES CHAMBERLAND, J.A.