2023 QCCQ 3798, 2023 QCCQ 3798

Pollak c. Director of Criminal and Penal Prosecution 2023 QCCQ 3798 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL CRIMINAL AND PENAL DIVISION No: 500-61-539438-219; 500-61-542907-218 DATE: June 15, 2023 ______________________________________________________________________ PRESIDED BY MADAME SUZANNE BOUSQUET PRESIDING JUSTICE OF THE PEACE ______________________________________________________________________ YAAKOV POLLAK Defendant v.

D IRECTOR OF CRIMINAL AND PENAL PROSECUTION Prosecutor ______________________________________________________________________ TRANSCRIPTION OF A JUDGEMENT RENDERED ORALLY ______________________________________________________________________ [ 1 ] Mr. Pollak has filed a Motion for a stay of proceedings in two different files in which he is charged with committing an offence to

Section 123 of the Public Health Act [1] . He alleges a violation to his right to be tried within a reasonable time, a right protected and guaranteed by

section 11b) of the Canadian Charter of Rights and Freedoms . [ 2 ] In the first file, no 500-61-539438-219, a statement of offence was serviced to Mr. Pollak for failing to respect the curfew hours on May 22 nd 2021. In this first file, his trial was first set on September 13 th , 2022, 17 months and 21 days later, seven days before reaching the 18 month presumptive ceiling established in Jordan v. R. [2] . [ 3 ] In the second of Mr.

Pollak’s files, no 500-61-542907-218, a second statement of offence was serviced to him for failing to maintain a distance of two meters with another person, on the 24 th of April, 2021. In this second file, his trial was first set on September 30 th , 2022, 17 months and seven days later, three weeks before reaching the Jordan ceiling. [ 4 ] Although these two files concern two different events, they should be dealt with together because they address the same issue, which is the delay between the date when proceedings commenced and the first date set for Mr. Pollak’s trials. [ 5 ] Are these delays reasonable ?

This is the question in issue. [ 6 ] But first, a brief

summary of the events. [ 7 ] In the first file, no 500-61-539438-219, Mr. Pollak pleaded not guilty two days after receiving the statement of offence. On September 22, 2022, the first trial date, he asked for a postponement, in order to assign an interpreter at the next date and to obtain pictures or videos of the event. His file was postponed to October 18, 2022, at which time he announced a “Jordan Motion”, to be submitted on February 7, 2023. [ 8 ] Meanwhile, in the second file, no. 500-61-542907-218, he entered a non-guilty plea the day after receiving the statement of offence.

On the first trial date, September 30, 2022, he asked for a postponement until January 31, 2023, waiving delays. On January 31, 2023, the case was postponed to February 7, 2023, along with the first file, for a case management hearing. [ 9 ] Subsequently, these two files, along with other similar ones, were postponed twice for case management hearings, on April 4, 2023 and on April 18, 2023, at which point they were set for trial before me on May 30 th , 2023. [ 10 ] Total delays by then had reached 26 months and eight days in the first file and 25 months and six days in the second.

Can any of these delays be attributed to the Defendant? [ 11 ] In his first file, the Defendant did not waive any delay until reaching the case management hearing for which he waived one month and 25 days. [ 12 ] The Prosecutor argues, however, that they were ready to proceed on the first and second dates set for trials, and that the Defendant had ample time beforehand to inquire about the existence or non-existence of pictures or videos. [ 13 ] Perhaps so, but the Defendant’s first requests for postponement cannot be qualified as a “deliberate and calculated tactic aimed at causing delay”, as stated in Jordan [3] .

Requests made by Mr. Pollak’s counsel cannot be qualified as frivolous even more so because

Mr. Pollak was waiting for his trial in at least three other similar cases. Any other lawyer would have needed some time to prepare an adequate defense and strategy. [ 14 ] In the second file, although Mr. Pollak did waive a total delay of six months and three days, the net delay of 19 months and three days still exceeds the Jordan presumptive ceiling.

In both files, the burden is therefore on the Prosecutor to rebut the presumption of unreasonableness on the basis of exceptional circumstances. [ 15 ] There are however, no exceptional circumstances in the first file. [ 16 ] As to the second, the prosecutor in charge of Mr. Pollak’s case was appointed to the bench during the proceedings. Quoting the Supreme Court in Cody v. R. [4] , the prosecutor argues that this constitutes an exceptional circumstance that the Court should take into consideration. [ 17 ] Respectfully, I do not agree. In Cody , it was the Defendant’s Counsel who had been appointed to the bench.

In Mr. Pollak’s file, the situation is quite different. In fact, any other prosecutor for the DCPP office could have rapidly taken over Mr. Pollak’s case, as it is done regularly in our courtrooms for this kind of statutary case. This is a simple case, and no delay should be subtracted because of the change in prosecutors. [ 18 ] In

summary, the Prosecutor has not succeded in rebutting the presumption that the net delay of 24 months and 13 days in the first file, and of 19 months and 3 days in the second, are unreasonable delays. [ 19 ] This being said, what these two Motions come down to is the unacceptable delays of 17 months and 21 days in the first file, and 17 months and seven days in the second, between the beginning of the proceedings and the first date of trial set by the Bureau des infractions et amendes.

And yet, in Jordan [5] , the Supreme Court had warned all actors of the judicial system, including the Government expressly, that adequate resources should be allowed in order to reduce delays. Referring to the new framework, the Supreme Court wrote: [140] For provincial legislatures and Parliament, this may mean taking a fresh look at rules, procedures, and other areas of the criminal law to ensure that they are more conducive to timely justice and that the criminal process focusses on what is truly necessary to a fair trial.

Legal Aid has a role to play in securing the participation of experienced defence counsel, particularly for long, complex trials. And Parliament may wish to consider the value of preliminary inquiries in light of expanded disclosure obligations. Government will also need to consider whether the criminal justice system (and any initiatives aimed at reducing delay) is adequately resourced . [ 20 ] The very long delays in Mr.

Pollak’s files constitute obvious evidence that the Government did not allow sufficient resources to the Bureau des infractions et amendes in order for them to deal adequately with the abundance of statements of offence issued during the Covid pandemic. [ 21 ] When first establishing the 18 month ceiling in Jordan , the Supreme Court relied, among other factors, on its former decision in R. c. Morin [6] and set at eight to ten months, the guide for institutional delay in provincial courts [7] . These first eight to ten months represent 44% to 55% of the 18 month ceiling. [ 22 ] In Mr.

Pollak’s first file, the institutional delay fills 540 out of the 549 days of the Jordan delay; less than 10 days were left to start and finish the trial. In his second file, the institutional delay fills 524 of the 549 days of the Jordan delay; only 25 days were left for the trial, imposing, in both files, an almost impossible burden on the Prosecution. [ 23 ] This is what Judge Mario Longpré reflexed upon in DPCP c.

Papadopoulos [8] , when he wrote: [67] De plus, il convient de souligner que l’intimé n’est pas responsable du délai de plus d’une année qui s’écoule entre la transmission de son plaidoyer de non-culpabilité et la réception de l’avis d’audition. Comme le rappelait récemment la Cour d’appel dans R. c. Thanabalasingham , c’est à l’État qu’appartient l’obligation d’amener un accusé ou un défendeur à procès dans un délai raisonnable. [68] Le plafond qui s’applique à l’affaire à l’étude est de 18 mois. Au-delà de ce plafond, le délai est présumé déraisonnable.

L’écoulement de plus des deux tiers du plafond avant de transmettre l’avis d’audition à l’intimé est une pratique à proscrire en ce qu’elle est susceptible de favoriser la tenue de procès à l’aube de l’atteinte du plafond, alors que le public peut s’attendre à ce que la plupart des affaires puissent être réglées avant que le plafond soit atteint, comme la Cour suprême du Canada l’énonce dans R. c. Jordan . [ 24 ] In Mr. Pollak’s files, we are way beyond a delay of two thirds of the 18 month ceiling. In fact, in Mr.

Pollak’s first file, the institutional delay occupies 98% of the total 18 months; and in the second, 95.6%. [ 25 ] These numbers speak for themselves. What more could be said? [ 26 ] FOR THESE REASONS, THE COURT: GRANTS the Defendant’s Motions and ORDERS a stay of proceedings in both of his files. __________________________________ SUZANNE BOUSQUET Me Sarah Brouillette For the Defendant

Me Marie-Claude Huot For the Director of criminal and penal prosecution Date of hearing: May 30, 2023