r v. Yves, 2011 QCCQ 185

R. c. Pichette 2011 QCCQ 185 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-001116-083 DATE: 18 January 2011 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Yves PICHETTE Accused _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Mr Pichette was charged, on

summary-conviction procedure, with impaired driving [1] and driving "over 80." [2] After a lapse of more than thirty (30) months he presented a motion seeking a stay of proceedings on the ground that he had not been tried within a reasonable time. The motion was granted. Here is why. [ 2 ] This case was listed for trial on three occasions. The defence was ready to proceed and thus no delay is attributable to Mr Pichette. On the first occasion the prosecution was granted an adjournment because a police officer was on vacation and thus unavailable to testify.

On two subsequent occasions the case was postponed because the court list was overloaded.

The evolution of this case can be summarised as follows: 22 November 2007 alleged offences and notice to appear on 4 February 2008; 4 February 2008 file not listed in court; 25 March 2008 first appearance; 8 May 2008 trial ( pro forma ) and trial date fixed for 28 February 2009; 28 February 2009 adjournment requested by prosecution because a police officer could not testify due to vacation; adjourned to 20 November 2009; 20 November 2009 adjournment to 25 June 2010 due to an overloaded court list; 13 May 2010 prosecution informs defence of its intention to obtain further expert analysis; 18 May 2010 prosecution discloses report of further expert analysis to defence and the defence seeks additional analysis from its expert witness; 25 June 2010 adjournment to 20 December 2010 due to an overloaded court list.

Between the first trial date in February 2009 and the last trial date in December 2010 there is a lapse of some twenty-two months. Before 20 December 2010 there were three false starts. On each trial date Mr Pichette was ready to proceed and was accompanied at court not only by counsel but by an expert witness. [ 3 ] I do not conclude that the delay in this case was unreasonable because the prosecution sought an adjournment. I do not conclude that the delay was unreasonable after one false start due to an overloaded court list.

I conclude that the cumulative effect of delay that failed to bring this case to trial after more than thirty months is unreasonable and intolerable. [ 4 ] This is not a case in which there is no clear explanation for delay. The reasons are clear. In my view it is self-evidently unreasonable to bring this man to trial after more than thirty months in a straightforward case that is undertaken by way of

summary- conviction procedure. In reaching this conclusion I follow the principles stated by the Supreme Court in Godin [3] but I should also like to add two comments on the question of prejudice.

[ 5 ] Unreasonable delay is prejudicial because, by definition, it brings the administration of justice into disrepute. I use that phrase deliberately because it is a phrase that has a plain meaning that extends beyond the application of section 24(2) of the Canadian Charter of Rights and Freedoms . Obviously the repute of the administration of justice is not formally part of the test applicable under section 24(1) of the Charter but that does not exclude this as a factor in determining a just and appropriate remedy under section 24(1) .

In this context every accused person who is subject to unreasonable delay suffers prejudice and so too does the administration of justice. The failure to bring an accused person to trial within a reasonable time brings the administration of justice into disrepute. That is why a stay of proceedings is a just and appropriate remedy. [ 6 ] When the state charges a person with a crime that person is in jeopardy of conviction and sentence.

For as long as that jeopardy endures the ordinary incidents of freedom are held in suspense. [4] Quite apart from jeopardy in this general sense, accused persons are also in jeopardy of stress, shame and social sanction for as long as a pending case is unresolved.

Reasonable delay must be tolerated as an incidental cost in the administration of justice but delay for which there is no satisfactory justification is intolerable. [5] [ 7 ] Second, at the hearing of this motion Mr Pichette testified that he is a senior international banker who lost his employment when his position was eliminated during economic difficulties encountered around the world. He testified that in his line of work any prospective employer demands to know if a candidate has criminal convictions or pending criminal cases.

I accept Mr Pichette's testimony that this routine requirement has affected his ability to secure employment in his profession. I accept further that this factor would aggravate the stress and stigma that accompany the jeopardy associated with outstanding criminal charges.

This is evidence of direct prejudice suffered personally by Mr Pichette that became progressively more aggravated as the delay lengthened. [ 8 ] In addition to this inhibition of his professional life Mr Pichette faced the costs associated with multiple courts dates and additional analysis by the expert he intended to call at trial. [ 9 ] In short, I accept that the delay in this case establishes not only a generalised prejudice that would affect any person in jeopardy for more than thirty months but a particular prejudice in the circumstances of Mr Pichette.

I need not conclude whether either the general or particular prejudice would suffice to establish a breach of

section 11(

b) of the Charter because I have no doubt that the combined effect of these prejudices is sufficient. [ 10 ] I am aware that a stay of proceedings granted under section 24(1) is a drastic remedy but there are two reasons to order a stay in this case. First, there is no other appropriate remedy. Second, it is the only remedy that is proportionate to the prejudice caused by a delay of over thirty months in a straightforward prosecution undertaken by way of

summary-conviction procedure. ____________________________________ PATRICK HEALY, J. C.Q. M e Pierre Garon For the prosecution M e Christian Desrosiers For Mr Pichette Date of hearing: 20 December 2010