2014 QCCA 191, 2014 QCCA 191

Unofficial English Translation R. c. Boisvert 2014 QCCA 191 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-005165-129 (500-01-016920-040) DATE: February 4, 2014 CORAM: THE HONOURABLE FRANCE THIBAULT, J.A. LORNE GIROUX, J.A. MARIE ST-PIERRE, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

DAVID BOISVERT RESPONDENT – accused JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Criminal and Penal Division, District of Montreal (the Honourable Judge Silvie Kovacevich), rendered on April 11, 2012, granting the respondent's motion for a stay of proceedings on the grounds that his right to be tried within a reasonable time had been violated, thereby terminating the ongoing trial. [1] [ 2 ] Following an automobile accident that occurred on November 11, 2004, in which his passenger, a young nineteen-year-old woman, died, the respondent was charged with impaired driving causing death (paragraph 253(1)(

a) and subsection 255(3) Cr. C. ) and with operating a vehicle with a blood alcohol level exceeding the legal limit (paragraph 253(1)(

b) and subsection 255(1) Cr.

C. ). [ 3 ] On March 6, 2009, [ translation ] "[a]t the end of a trial, which proceeded very slowly", [2] the respondent was acquitted on the first count and found guilty on the second. [ 4 ] The Crown appealed from the acquittal and the respondent appealed from the conviction. [ 5 ] On May 16, 2011, the Court dismissed the respondent's appeal but allowed the Crown's and ordered a new trial on the count of impaired driving causing death. [3] [ 6 ] The respondent appeared on July 11, 2011, and after various proceedings to perfect the file, [4] the trial was scheduled for nine days starting April 10, 2012. [ 7 ] It was during this second trial that the respondent brought a motion for a stay of proceedings under paragraph 11(

b) and subsection 24(1) of the Canadian Charter of Rights and Freedoms . [5] [ 8 ] The trial judge who heard this motion identified and characterized the various delays and, adding the institutional delays and the delays attributable to the Crown, found them to total thirty-nine months (or just over three years). The trial judge deemed this delay to be unreasonable and that the respondent had suffered prejudice.

She granted the motion and ordered a stay of proceedings in these words: [ translation ] The guidelines as stated in Morin indicate that for processes such as those that I previously indicated, i.e., a criminal legal process in two (2) stages, the suggested period is about eighteen (18) months. This case has certainly gone far beyond this. As for the nature of the case, aside from the fact that there was a crime scene reconstruction expert, this was not a complex case where there was cause to stray so far from the guidelines.

As for the prejudice and its assessment, I adopt the comments made in Godin by Cromwell J., who reiterated the teachings of the Supreme Court in Morin that prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference can be made. In this case, the delay is of five (5) years. The Court considers that this delay has caused the petitioner prejudice to the security of his person. He should not have had to endure the stress, anxiety and climate of mistrust stirred up by criminal charges.

The delay in question, when weighed against the interest of society and the accused in the promptness of the trial outweighs the interest of society in bringing the accused to trial. In these circumstances, because of the unreasonable delay and the prejudice suffered, the Court concludes that the right of the accused to a trial within a reasonable time was violated. In light of this conclusion, the only remedy is to stay proceedings.

Consequently, I am ordering a stay of proceedings. [ 9 ] The Crown appeals from this judgment and alleges that the judge committed three types of errors: (1) she incorrectly characterized various delays at the expense of the Crown; (2) she erred by concluding that prejudice had been suffered when the respondent had not discharged his burden of establishing the said prejudice; (3) she failed to broaden the reference period regarding institutional delays in light of the order to hold a new trial. [ 10 ] We find that we agree with the Crown and that its appeal should be allowed. [ 11 ] This is why. 1.

Characterization of various delays [ 12 ] The characterization of delays is not a discretionary exercise. Consequently, the standard of review for this decision is that of correctness. [6] [ 13 ] The judge committed various errors in her analysis of the delays: errors in computing the number of days [7] and errors in characterizing various periods relevant to this debate because they have an impact on the analysis of the reasonableness of the delay. [ 14 ] The judge's assessment that the institutional delays and those attributable to the Crown represent about 39 months is wrong.

When the judge's errors as to the number of days are taken into consideration, these delays actually represent 21 ¾ months (510 days due to institutional delays and 142 days due to delays attributable to the Crown). [ 15 ] The characterization of the following periods must be corrected: • December 22, 2005, to February 8, 2006 (48 days); • January 10 to November 21, 2007 (315 days); • March 19, 2008 to May 2, 2008 (44 days), May 2, 2008, to September 19, 2008 (140 days), and November 12, 2008, to January 8, 2009 (57 days) (for a total of 241 days).

December 22, 2005 to February 8, 2006 (48 days) [ 16 ] The judge attributed this delay to the Crown since, in her view, it was due to the belated disclosure of the expert report prepared by the crime scene reconstructionist. [ 17 ] This conclusion made by the judge might be the result of the assertion made by counsel for the respondent during her submissions on the motion for a stay of proceedings that there were still some things missing as at December 22, 2005, but without giving any more information.

That being said, the evidence on the record does not indicate that the pro forma adjournment was due to any such belated disclosure. [ 18 ] What the evidence reveals is that the defence sought the pro forma adjournment to begin or continue discussions with the Crown, after having waived the preliminary inquiry. [ 19 ] Here is the conversation that preceded the pro forma adjournment of the case to February 8, 2006: [ translation ] THE DEFENCE: So, the preliminary inquiry was expected to last five hours. So, in this case, Your Honour, the defence is offering to proceed pursuant to

section 549 of the Criminal Code . THE CROWN:

And there is consent. ... THE COURT: So, what date would you like to go to trial? THE DEFENCE: I would like a pro forma date, if you please, late January, to... THE CROWN: Discussion? THE DEFENCE: ...to discuss and to... THE COURT: So, in room 4.06? THE CROWN: Please.

I can suggest dates in early February ... [ 20 ] Finally, even if we were to accept that certain documents had yet to be communicated as at December 22, 2005, this did not cause any additional delays since the respondent waived a preliminary inquiry on that same day. [ 21 ] Consequently, these 48 days must be deducted from the delays attributed to the Crown.

January 10 to November 21, 2007 (315 days) [ 22 ] The trial was set to begin on January 10, 2007, and to last for three days, but it was postponed by consent. [ 23 ] The judge erred when she attributed the entire 315-day delay to the Crown despite the content of the letter preceding the decision to grant the postponement, of the oral submissions of counsel for the respondent stating that the latter was ready to take responsibility for this delay, and of allegations 40, 60, and 61 of the motion for a stay of proceedings, supported by a sworn statement, and drafted as follows: [ translation ] 40.

The petitioner concedes that he initiated the postponement and cancellation of witnesses for the first trial date set for January 10, 2007, which was postponed to November 21, 2007, a period of 10 months ; 60. The consensual postponement of the trial set for January 10, 2007, is based on a cancellation of witnesses by the Chief Justice Élizabeth Corte, following a request by the defence; 61.

A period of about 10 months (January to November 2007) must therefore be deducted from the overall computation otherwise attributable to Crown and institutional delays; [Underlined in the original, emphasis in the original.] [ 24 ] It is also noteworthy that it was only on January 8, 2007, a mere two days before the trial was scheduled to begin on a date that had been set on March 10, 2006, by mutual agreement, for three days, that the defence served the Crown with a motion to exclude evidence alleging violations of sections 7 , 8 , 9 , 10(

a) and 10(

b) of the Charter . [ 25 ] Even though the judge was not bound by the legal characterization submitted by either of the parties, she nevertheless had to correctly characterize the period. [8] [ 26 ] According to Lamer J. in Rahey [9] and L'Heureux-Dubé J. in Brassard , [10] in the context set out above, these 315 days should not have been attributed to the Crown. Excerpt from Rahey If an accused requests, causes or consents to a delay, it should normally be excluded from consideration when assessing reasonableness ...

Excerpt from Brassard In the absence of any evidence that these consents amount to acquiescence in the inevitable, the consents constituted waiver or, as actions of the accused, were attributable to him.

March 19, 2008 to September 19, 2008, and November 12, 2008 to January 8, 2009 [ 27 ] The judge performed her analysis by dividing this period into three sub-periods: March 19, 2008 to May 2, 2008, May 2, 2008 to September 19, 2008, and November 12, 2008 to January 8, 2009. [ 28 ] She characterized the delays from March 19 to May 2, 2008 and November 12, 2008 to January 8, 2009 as institutional.

She attributed the period between May 2, 2008 and September 19, 2008 to the defence and the Crown in equal parts. [ 29 ] The immediate context that is relevant to our consideration of these sub-periods can be summarized as follows: • On January 10, 2007, the trial was postponed by mutual agreement and a new date was set for three days on November 21, 22, and 23, 2007. • As planned, the trial began on November 21, 2007, with the Crown evidence and the requisite voir-dire concerning the motion to exclude evidence. • The next day, evidence on the voir-dire continued but was not completed.

Furthermore, the respondent requested more time to draft and present a motion for a stay of proceedings. The respondent was granted some time and the trial was adjourned pro forma to December 10, 2007. The motion for a stay of proceedings resulting from a failure to disclose evidence (failure to communicate the police officers' note pads) was drafted – it is dated December 7, 2007. On December 10, 2007, the hearing for this motion was set for March 6, 2008.

The motion was heard on the set date, March 6, 2008, and was dismissed by judgment rendered on March 19, 2008. • On March 19, 2008, the continuance of the trial was managed, the rest of the voir-dire evidence on the motion to exclude evidence in particular. Despite scheduling restrictions that were announced and disclosed, the continuance was set for May 2, 2008.

There was not enough time that day, however, to tender all of the evidence, and the hearing was adjourned to September 19, 2008. • On September 19, 2008, the evidence on the voir-dire was completed and the judge indicated that her judgment on the motion to exclude evidence would be rendered on November 11, 2008.

The judgment dismissing the motion to exclude evidence was indeed rendered as announced. • On November 12, 2008, the date to which the file had been continued pro forma pending judgment on the motion to exclude evidence, the rest of the trial was set for January 8, 2009. [ 30 ] The delays since March 19, 2008, are a direct consequence of the voir-dire on the motion to exclude evidence brought by the respondent and the December 7, 2007 hearing of the respondent's motion for a stay of proceedings concerning the disappearance of the police officers' note pads.

All these delays result from the impossibility of completing the trial in the three days that had been previously assessed. [ 31 ] In such circumstances, the fact that the appellant was unaware of the respondent's motion for a stay of proceedings when it set the trial for three days constituted an unforeseen development for which the judge should have performed an analysis such as that set out by the Court of Appeal for Ontario in Tran : [48] I also pause to add the following observation.

Judges should be cautious about engaging in a minute analysis of the normal vicissitudes of a trial for the purpose of allocating delay to the Crown or to the defence on s. 11(

b) Charter applications - for example, the need to pause to consider unforeseen developments during the trial , the customary requirement to juggle the line-up and availability of witnesses, insignificant administrative glitches or early adjournments.

Except in rare cases where unreasonable delay arising from such issues can readily be attributed to one side or the other or to the court system, I would think that delays arising from these sorts of factors during the normal evolution of a trial would be part of the inherent time requirements of the case . [11] [Emphasis added.] [ 32 ] Furthermore, since the additional time required for the trial process was the result of the respondent's motions, which had not been or could not be taken into account in the assessment of the length of the trial for scheduling purposes, the judge should not have attributed the delay from May 2, 2008 to September 19, 2008 to both parties in equal parts but should have considered it to be an inherent delay (neutral), as did the British Columbia Court of Appeal in Horner : [84] I agree with the Crown that, strictly speaking, the voir dires were not part of the inherent requirements of the trial, but rather attributable to "actions of the accused".

However, in a trial where the Crown's case is based on evidence obtained from wiretaps, unless a guilty plea is entered, it might be said to be inevitable that the wiretap evidence will be challenged. The applications in the case at bar were not considered by the trial judge to be frivolous. When the dust settled, she ruled invalid two of five authorizations before her illness precluded hearing submissions on the sixth. In my view, the amount of court time taken to complete the voir dires , while attributable to the defence, is not much more than a neutral factor in this case . [12] [Emphasis added.

Although it is worth noting that the words "court time" are underlined in the original as well.] and the teachings of the Supreme Court in Godin , [13] at paragraph 23: ... Scheduling requires reasonable availability and reasonable cooperation; it does not, for s. 11 (

b) purposes, require defence counsel to hold themselves in a state of perpetual availability. [ 33 ] Thus, the judge should have characterized all of these delays (these three sub-periods) as inherent rather than allocating them to the parties or the institution, as the case may be. [14]

2. Conclusions as to prejudice [ 34 ] The judge did not find that the respondent had proved prejudice. She merely stated that there was cause to draw such a conclusion in light of the five-year delay. It is useful to reiterate her comments in this respect: [ translation ] As for the prejudice and its assessment , I adopt the comments made in Godin by Cromwell J., who reiterated the teachings of the Supreme Court in Morin that prejudice may be inferred from the length of the delay. The longer the delay, the more likely that such an inference can be made. In this case, the delay is of five (5) years .

The Court considers that this delay has caused the petitioner prejudice , to the security of his person.

He should not have had to endure the stress, anxiety and climate of mistrust stirred up by criminal charges. [Emphasis added.] [ 35 ] Although we acknowledge that an appellate court intervenes only rarely with respect to the trial judge's decision regarding the assessment of prejudice, this situation requires that we do so because the judge committed errors and her conclusion would clearly have been different had it not been for those errors. [ 36 ] While it is possible to infer prejudice from the mere length of the delay, such an inference may be contested, by the Crown in particular: Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. ...

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and that the delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negative prejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length of institutional delay that will be tolerated.

The application of any guideline will be influenced by this factor. [15] [ 37 ] This is all the more important because: [ translation ] The Supreme Court, in the Morin , Sharma , and CIP Inc. trilogy, elevated prejudice to essential element status in a subsection 11(

b) Charter violation and, more importantly, placed the burden of proof on the accused, although in some cases, prejudice may be inferred from the length of the delays ... [16] [Footnotes omitted.] [ 38 ] The facts of this file do not ground an inference of prejudice other than that which results from being charged with criminal offences. [ 39 ] The fact is that the Crown is correct when it argues that there is no other specific prejudice. [ 40 ] The respondent was not detained. He is gainfully employed and has started a family (he is the father of three children).

Very few constraints were placed on him and the driving restrictions that were set over the years, which are hardly restrictive, were put in place because of a second impaired driving incident, which is the subject of another file involving the respondent in the judicial district of Terrebonne. [ 41 ] There is nothing in the evidence to indicate that the respondent was worried about the speed at which the case was proceeding and nothing indicates that the delays incurred to date caused or threaten to cause evidentiary issues in the upcoming trial. 3.

Application of guidelines [ 42 ] In principle, according to the guidelines set out by the Supreme Court, when analyzing subsection 11(

b) of the Charter in a trial situation before the Court of Quebec, but after the preliminary inquiry, the delay to consider is 14 to 18 months. [ translation ] In Askov , the Supreme Court establishes a guideline of six to eight months between the moment a case is committed to trial and the moment that trial is held before the Superior Court. In Morin , the Court found that a period of eight to ten months was acceptable where proceedings, whether a preliminary inquiry or a trial, had been brought before a provincial court.

This lengthier delay is explained by the much greater volume of cases brought before that court, which hears more than 95% of the cases. Sopinka J. took care to state that the institutional delay of six to eight months suggested in Askov would be added to this institutional delay when there is committal to trial. Because a case will have inherent delays that may last some months, the Supreme Court is in principle ready to tolerate institutional delays ranging from 14 to 18 months. [17]

[Footnotes omitted.] [ 43 ] With respect to these guidelines, the trial judge stated: [ translation ] The guidelines as stated in Morin indicate that for processes such as those previously indicated, i.e.., a criminal legal process in two (2) stages, the suggested period is about eighteen (18) months. [ 44 ] Having found that according to her computations the institutional delays and those attributed to the Crown represented about 39 months, the judge concluded that there was a significant departure from the guidelines. [ translation ] This case has certainly gone far beyond this. [ 45 ] Clearly, the judge would not have made this statement if she had correctly characterized the delays (according to the characterization described above), as the total delay before her would have been 21 ¾ months. [ 46 ] In that context, the judge should have favoured society's interest in seeing the case brought to trial.

She could not reasonably conclude, as she did, that [ translation ] "[t]he delay in question, when weighed against the interest of society and the accused the promptness of the trial outweighs the interest of society in bringing the accused to trial". [ 47 ] In the circumstances of the case, the guidelines were not a strict mathematical formula or a set limitation period, and the judge should have dismissed the motion for a stay of proceedings. [ 48 ] As the Supreme Court writes in Morin : [18] The general approach to a determination of whether the s. 11(

b) right has been denied is not by the application of a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section is designed to protect against factors which inevitably lead to delay. ... A number of considerations enter into the adoption of a guideline and its application by trial courts. A guideline is not intended to be applied in a purely mechanical fashion . It must lend itself and yield to other factors. This premise enters into its formulation. The Court must acknowledge that a guideline is not the result of any precise legal or scientific formula. ... I have already stressed that a guideline is not to be treated as a fixed limitation period . It will yield to other factors. ...

These suggested time periods are intended for the guidance of trial courts generally. These periods will no doubt require adjustment by trial courts in the various regions of the country to take into account local conditions and they will need to be adjusted from time to time to reflect changing circumstances . ... [Emphasis added.] [ 49 ] The judge should have taken into account the Crown's appeal following the acquittal and the additional step (another stage) that resulted from the order to hold a new trial.

It would have been logical for her to do so in light of the teachings of the Supreme Court that in a multi-stage situation, more time should be allowed for inherent delays. Clearly a longer time must be allowed for cases that must proceed through a "two-stage" trial process than for cases which do not require a preliminary hearing. ... An additional period for inherent time requirements must be allowed for this second stage. This period will be shorter than in the case of the one-stage trial process because many of the intake procedures will not have to be duplicated . ...

Based on the foregoing, it is appropriate for this Court to suggest a period of institutional delay of between 8 and 10 months as a guide to Provincial Courts. With respect to institutional delay after committal for trial, I would not depart from the range of 6 to 8 months that was suggested in Askov . In such a case this institutional delay would be in addition to the delay prior to committal. This reflects the fact that after committal the system must cope with a different court with its special resource problems.

It is therefore essential to take into account the inevitability of this additional institutional delay . [19] [Emphasis added.] [ 50 ] As our colleague Dalphond, J.A. wrote in Camiran , the judge should have taken into account [ translation ] "society's interest in ensuring that the legal process finds the truth" and its [ translation ] "great interest in seeing serious charges judged on the merits". [20] The progression of this case, however, does not indicate that the respondent's constitutional right to be tried within a reasonable time was violated. [ 51 ] It is useful here to recall that everyone involved must make it a priority to set new trial dates once a new trial is ordered by an appellate court.

In this case, we note that none of the delays since this Court's judgment ordering a new trial on May 16, 2011, are attributable to the Crown and that the institutional delays amount to only 162 days (less than 5 months). The length of the second trial has been reassessed and 9 days are planned (rather than the original 3 days).

The judge could not be unaware of these realities. [ 52 ] The trial judge should also have taken into account the evidence showing that the respondent was not in any particular rush to push the first trial forward more quickly and the evidence showing the absence of specific proof of prejudice:

The purpose of s. 11(

b) is to expedite trials and minimize prejudice and not to avoid trials on the merits. Action or non-action by the accused which is inconsistent with a desire for a timely trial is something that the court must consider. The application of a guideline will also be influenced by the presence or absence of prejudice. If an accused is in custody or, while not in custody, subject to restrictive bail terms or conditions or otherwise experiences substantial prejudice, the period of acceptable institutional delay may be shortened to reflect the court's concern.

On the other hand, in a case in which there is no prejudice or prejudice is slight, the guideline may be applied to reflect this fact. [21] [ 53 ] The guidelines are a precious tool, but their application is always subordinate to the specific, overall situation of the case at issue.

As I have been at pains to emphasize, an investigation of unreasonable delay must take into account all reasons for the delay in an attempt to delineate what is truly reasonable for the case before the court. [22] [Emphasis in original.] [ 54 ] In the present case, because of the two trials, the second of which was ordered following an appeal that was deemed to have merit and which requires a 9-day window of availability, the judge had to take into account an acceptable period of additional institutional delays, above and beyond the range of 14 to 18 months stated by the Supreme Court, as suggested by Quon, J. of the Ontario Court of Justice in R v.

Owens : [23] [107] On this question, several courts have attempted to clarify what the notion of rewinding the constitutional clock meant for these appeal and a new trial situations, but have arrived at different and conflicting

interpretations. In R. v. Laflamme , [2002] O.J. No. 5584 (QL) (O.C.J.) , Nadelle J. at paras. 15 and 16, interpreted the Supreme Court's comments about rewinding the constitutional clock in R. v. Potvin to mean that it starts anew from the appellate decision ordering a new trial [ emphasis is mine below ]: The Potvin judgment then quotes Doherty, J., now with the Ontario Court of Appeal, from a paper or speech entitled "More Flesh on the Bones" at the Annual Institute on Continuing Legal Education.

At page 9, Doherty, J. stated: "If, however, a new trial is ordered on appeal, or some other order is made directing the continuation of the trial proceedings, the constitutional clock should be rewound at the time of the order by the appellate court." I interpret this to mean that the constitutional clock begins running anew from the date of the appellate decision ordering a new trial, rather than going back to the original charge date or original first trial date . To find otherwise would mean that in virtually all cases where a new trial is directed, the accused on a s. 11 (

b) application would get the benefit of the earlier time delay and the latter time delay before the newly-ordered retrial, and thus where there may not have been sufficient delays to even trigger an inquiry separately, when combined would provide such a triggering effect, and, likely a successful 11(

b) application. [108] However, in R. v. Spencer , [2004] O.J. No. 5863 (QL) (O.C.J.) , Hryn J. at para. 22, arrived at a different conclusion on what rewinding the clock entails when there is an appeal and a new trial ordered. Unlike the court in R. v. Laflamme , Hryn J. reasoned that s. 11 (

b) also applies to the period of institutional delay or to any prior delay arising in the first trial: The Court's language in Potvin, indicating that the fact of an appeal does not mean, " s. 11 (

b) is spent" and the Court's reference to the charge being "revived," and the accused reverting "to the status of a person charged," connotes a reverting to the prior status with a continuing analysis of the accused's s. 11 (

b) rights, excluding the appellant period, and not that the s. 11 (

b) rights are considered anew without consideration of any prior delay. [109] Moreover, Hryn J. in R. v. Spencer , at para. 25, then considered the concerns expressed by the court in R. v.

Laflamme regarding the reality and practicality of applying the administrative guideline of 8 to 10 months strictly to the situation where there is a new trial directed from an appeal court and where there is a combination of delay from the first and second trials, and reasoned that the 8 to 10 month guideline is not static and can be expanded for inherent time requirements that take into account the temporal effect of conducting two trials, and as such, he decided that the subsequent time to reasonably commence the new trial would be considered as an inherent time requirement in the s. 11 (

b) analysis [ emphasis is mine below ]: In Morin , the Court suggests a period of institutional delay of between eight to ten months as a guide to provincial courts. The concern expressed in paragraph 16 of Laflamme, that where a new trial is directed then combining the earlier time delay and the latter time delay would, "in virtually all cases" result in a successful 11(

b) application is only a concern if the eight to ten months guideline is seen to be static. But in Morin the Court states that inherent time requirements be considered. Ordering a new trial after an appeal is an inherent time requirement to be considered in such an analysis expanding the eight to ten month guideline . [110] Therefore, based on the reasoning in R. v.

Spencer , which logically resolves the concerns expressed by the court in Laflamme , we are now provided with an analysis that takes into the account the cumulative effect of conducting two trials in which a period of institutional delay would be permitted beyond the 8 to 10 month guideline on the basis of inherent time requirements to conduct two trials. [Emphasis in original.] Conclusion [ 55 ] In short, the record did not reveal a violation of the respondent's rights under subsection 11(

b) of the Charter . Society's interest therefore must prevail. The motion for a stay of proceedings should be dismissed. FOR THESE REASONS, THE COURT:

[ 56 ] ALLOWS the appeal; [ 57 ] QUASHES the judgment under appeal and DISMISSES the motion for a stay of proceedings. [ 58 ] ORDERS the holding of the trial. FRANCE THIBAULT, J.A. LORNE GIROUX, J.A. MARIE ST-PIERRE, J.A. Mtre Dennis Galiatsatos CRIMINAL AND PENAL PROSECUTOR For the appellant Mtre Joëlle Roy GAGNÉ & ROY, ATTORNEYS For the respondent Date of hearing: January 20, 2014