2021 QCCA 22, 2021 QCCA 22

[NDLE : La traduction française non-officielle de l’arrêt de la Cour se trouve à la fin des motifs.] Dhingra c. R. 2021 QCCA 22 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006787-186 (500-01-099546-134) DATE: JANUARY 12, 2021 CORAM: THE HONOURABLE ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A. SONINDER DHINGRA APPELLANT – Accused v. HER MAJESTY THE QUEEN RESPONDENT – Prosecutor JUDGMENT [ 1 ] On June 6, 2018, Judge Flavia K.

Longo of the Court of Québec found the appellant guilty of various drug trafficking and importation charges and of criminally conspiring to traffic such substances. The appellant has appealed this conviction. [ 2 ] The appellant seeks his release pending the determination of his appeal. He further seeks to add violations of his linguistic rights at trial as an additional ground of appeal.

Moreover, he seeks the immediate quashing of his conviction and an order for a new trial based on these new grounds of appeal. [ 3 ] For the reasons of Mainville, J.A., with which Hilton and Sansfaçon, JJ.A. concur, THE COURT: [ 4 ] ALLOWS the appellant to raise additional grounds of appeal based on alleged violations of his linguistic rights at trial; [ 5 ] DISMISSES the appellant’s application for the immediate quashing of his conviction and for an immediate order of a new trial; [ 6 ] DISMISSES the appellant’s application for release from custody pending the disposition of the appeal; [ 7 ] ORDERS that the appeal proceed as follows: (

a) the appellant must notify to the Crown and file with the Court his appeal brief and all related documents on or before April 16, 2021, based on the partial trial record then available; (

b) the Crown must notify to the appellant and file with the Court its appeal brief and all supplemental documents it deems appropriate on or before May 28, 2021, based on the partial trial record then available; (

c) the 15 volumes of transcripts of the proceedings and of the

interpretation of the proceedings filed by the appellant on November 2, 2020, within the context of his application for release, need not be reproduced in the parties' respective appeal briefs; these transcripts are deemed filed for the purposes of the appeal on the merits and may be referred to by the parties in their respective argument; (

d) any additional transcripts which have been made available to the appellant are to be filed with the appellant’s appeal brief; (

e) the Crown may file with its appeal brief any additional transcripts it deems appropriate for the purposes of the appeal, insofar as it complies with the deadline to file its brief;

[ 8 ] ORDERS that the appeal be heard on Friday, June 11, 2021, at 9:30 a.m., before the panel of the Court which will be sitting in the Lamer courtroom in Montreal, for a total duration not exceeding 180 minutes (90 minutes for the appellant and 90 minutes for the respondent); ALLAN R. HILTON, J.A. ROBERT M. MAINVILLE, J.A. STÉPHANE SANSFAÇON, J.A.

Mtre Véronique Robert ROY ROBERT, AVOCATS For Appellant Mtre Richard Audet DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS For Respondent Date of hearing: November 23, 2020 REASONS OF MAINVILLE, J.A. [ 9 ] On June 6, 2018, the appellant was found guilty of trafficking in and importing large quantities of cocaine and crystal meth and of criminally conspiring to traffic such substances. [ 10 ] On January 16, 2019, he was sentenced to a total of 15 years' imprisonment.

A pre-trial detention period of 4 years, 1 month and 13 days was deducted on the basis of one and a half days of imprisonment for each day of pre-trial detention, for an effective total sentence of imprisonment of 8 years, 9 months and 25 days. [ 11 ] An appeal of the conviction on grounds involving questions of law was filed on July 4, 2018, and an application for leave to appeal the conviction on grounds involving questions of fact or questions of mixed fact and law was granted on October 18, 2018. The sentence has not been appealed.

Though almost two and a half years have elapsed since the appeal was first initiated, there has been no progress with regard to its prosecution. [ 12 ] Until recently, notwithstanding the best efforts of the appellant’s counsel, very few transcripts of the trial and none of the transcripts of the English

interpretation were made available. [ 13 ] On August 6, 2020, the appellant applied for his release pending the disposition of his appeal, raising as a principal ground his inability to obtain the transcripts of his trial. That application was heard before me on August 25, 2020. [ 14 ] On August 27, 2020, I determined that it would be inappropriate to decide on the appellant’s release without the transcripts of the trial first being made available to the parties and the Court. I further issued orders to ensure the preparation and filing of such transcripts by November 6, 2020, at the latest.

Pending the filing of the transcripts, I deferred the application for release to the panel of the Court sitting on November 23, 2020: Dhingra v. R. , 2020 QCCA 1085 . [ 15 ] A panel of the Court heard the application for release on November 23, 2020, where the issue of the unavailability of the trial transcripts was again raised and where the appellant referred to multiple violations of his linguistics rights throughout the trial. The appellant seeks to add these alleged violations as an additional ground of appeal.

THE LANGUAGE OF THE TRIAL [ 16 ] The appellant’s language of birth is Punjabi, but he also has a good knowledge of English. According to the submissions made on his behalf, he identifies himself as English-speaking. [ 17 ] Notwithstanding his language, the serious drug importation and trafficking charges first brought against him on November 28, 2013, in file 500-01-098838-136 of the Court of Québec, were all drafted in French.

Shortly after these initial charges were laid, on November 29, 2013, the appellant was granted interim release with conditions. [ 18 ] On December 13, 2013, new but similar charges were brought against the appellant in file 500-01-099546-134 of the Court of

Québec. All these charges were again drafted in French. The initial charges in file 500-01-098838-136 were withdrawn and the appellant’s interim release conditions were transferred to the new file. [ 19 ] One year later, in December 2014, the appellant was also charged in another file, number 500-01-115300-144 of the Court of Québec, with other drug trafficking offences which he was said to have carried out while at large on conditions; he was further charged in file 500-01-115010-149 of the Court of Québec with related breaches of his interim release conditions.

The appellant was detained in relation to those other files. This further resulted in a hearing with respect to the revocation of his interim release in the main file 500-01- 099546-134. [ 20 ] Following a hearing carried out in French with simultaneous English

interpretation provided to the appellant, on December 6, 2016, the appellant’s interim release was revoked by Judge Gilles Cadieux of the Court of Québec. The revocation was largely based on the alleged additional drug-related offences committed by the appellant while at large on conditions and which resulted in the new criminal charges in files 500-01-115300-144 and 500-01-115010-149. However, the appellant was never found guilty of these charges.

Indeed, on December 8, 2017, the Crown filed a nolle prosequi in file 500-01-115300-144, while on November 26, 2018, the charges in file 500-01-115010-149 related to the breaches of the conditions of interim release were withdrawn. [ 21 ] Shortly after the revocation of the interim release, the question of the language of the trial was raised at a case management conference held on December 8, 2016. At that conference, the judge was informed that all witnesses for the prosecution would be testifying in French.

The following exchange then occurred: THE COURT: Are we going to proceed with a simultaneous or consecutive translation? (…) Me DEBORA DE THOMASIS [defence counsel] Now to have had the problem in another file, I don’t have problems with simultaneously, meaning he would hear it, my only issue is we’ve tried it in another file where it was registered on an independent band, unfortunately, half of it is inaudible on that file and it’s at the Court of Appeal right now.

So that’s a bit of an issue, I don’t know if there is a way that we could make sure that it’s registering properly, or if we have a… je vous le dis, because then it’s a major problem because on linguistic rights it’s… I don’t want a new trial because of technicalities this way, we understand each other. (Transcript of the hearing held December 8, 2016, p. 68, lines 6-24) (…) THE COURT: … we have the box for the interpreter. So considering that we are going to use Room 5.12, are we going to proceed with a simultaneous or a consecutive translation?

Me DEBORA DE THOMASIS: Simultaneously as long as it’s properly registered. We’ll do some spot checks if you don’t mind. THE COURT: Well, I cannot guarantee anything. (Transcript of the hearing held December 8, 2016, p. 72, line 18, to p. 73, line 1) (…) THE COURT: So we agree with a simultaneous translation? Me DEBORA DE THOMASIS: Yes, we do.

THE COURT: So, madame la greffière, we will need a French-English translator for all the witnesses and the Defence agrees to proceed with a simultaneous translation as long as we proceed in Room 5.12. (…) (Transcript of the hearing held December 8, 2016, p. 73, lines 17-25) [ 22 ] It thus seems that the trial itself was to be held in English with simultaneous

interpretation of the testimony of any witness testifying in French. [ 23 ] As a matter of fact, a subsequent O’Connor type motion was argued in English on February 10, 2017. However, Crown counsel nevertheless insisted on making submissions in French, thus requiring the

interpretation of these submissions. This resulted in the

following comment by counsel then representing the appellant: Me DEBORA DE THOMASIS So just for the benefit of the client and I’m not waiving his constitutional rights to be… to have everything said in English, but basically… (Transcript of the hearing held February 10, 2017, p. 12, lines 18-21) [ 24 ] The

interpretation of the Crown’s arguments was provided at that date by means of whispering to the appellant. The transcript sets out the following note in this matter: Note: Translation was whispered to the defendant and thus was inaudible for transcription purposes – MJL, o.c.r. (Transcript of the hearing held February 10, 2017, p. 21, lines 1 to 3) [ 25 ] At the subsequent March 22, 2017 hearing on the O’Connor type motion, the judge insisted, in order to save time, that the proceedings be carried out in French with simultaneous

interpretation provided to the appellant: LA COUR: Okay. Bon, est-ce que l’enregistrement est parti? LA GREFFIÈRE : Oui, l’enregistrement, il est parti. LA COUR : Bon, alors des deux côtés; l’enregistrement de la cour aussi. Bon, parfait. Alors monsieur Dhingra, nous avons requis le… la traduction des débats est enregistrée. De sorte que ça permet de faire l’interprétation, la traduction en simultanée ce qui sauve beaucoup de temps et ce qui vous donne quand même la latitude d’avoir les débats en anglais si vous souhaitez avoir la transcription. (Transcript of the hearing held March 22, 2017, p. 29, line 17, to p. 30, line 3) [ 26 ] Moreover, since the equipment to carry out simultaneous

interpretation and to record it appears to have been defective, part of the

interpretation was again carried out by whispering to the appellant: Transcript of the hearing held March 22, 2017, p. 32, line 16, to p. 38, line 3; p. 47 line 18, to p. 49, line 2; p. 63, line 6, to p. 65, line 7. [ 27 ] This further resulted in numerous problems in

interpretation and difficulties in securing a valid transcript of the

interpretation, as noted by the official stenographer: THIS TRANSCRIPTION IS FROM THE VOICE OF THE SIMULTANEOUS INTERPRETER ONLY – IDENTIFICATION OF INTERVENANTS IS TO THE BEST OF MY ABILITY WHEN POSSIBLE – mjl: NOTES: 1 – THIS INTERPRETER IS WHISPERING THE TRANSLATION CAUSING MORE INAUDIBLES. 2 – EXCEPT FOR REFERENCE TO JURISPRUDENCE, WORDS IN ITALICS ARE A “WRONG” TRANSLATION BUT VERBATIM. 3 – BECAUSE OF CONTINUOUS “SIMULTANEOUS” TRANSLATION IT IS IMPOSSIBLE TO DECIPHER WHETHER TRANSLATION IS FROM CITATIONS OR NOT. MJL (Transcript of the English

interpretation of the hearing held March 22, 2017, p. 2, lines 1 to 10) (…) Transcribed under reserve of isolated simultaneous translation audio track hence overlapping voice of speaker. MJL (Transcript of the English

interpretation of the hearing held March 22, 2017, notice provided on each page of the transcript) [Emphasis in original] [ 28 ] This appears to have been a recurring problem, similar notes and comments being made from time to time by the stenographers who subsequently transcribed the proceedings, most notably with regard to the hearings held September 12, 2017 (Transcript of the English

interpretation of the hearing held September 12, 2017, p. 2, lines 1 to 10) and November 29, 2017 (Transcript of the English

interpretation of the hearing held November 29, 2017, heading of each page). [ 29 ] The trial was in fact almost exclusively held in French, with simultaneous

interpretation being provided to the appellant, at times by way of whispering. Crown counsel and the judge expressed themselves mainly in French throughout the proceedings. [ 30 ] No formal objection was raised at trial on behalf of the appellant with respect to the language of the proceedings or the quality of the

interpretation. The appellant himself recognized this when he testified on August 31, 2017, in the context of his first Jordan type motion: Q. Is there any other things you did in the legal procedure to…

A. I agreed for a simultaneous translation, I agreed not to have an English trial just to speed up the process, I agreed not to have a judge and jury just not to go… just not to create any delays with my trial. I agreed to have a judge only trial, everything, I agreed with everything whatever I could. (Transcript of the hearing held August 31, 2017, p. 70, lines 6-13) [ 31 ] When the formal trial phase itself began on November 27, 2017, the attorney then representing the appellant began by expressing herself in English, while reiterating that simultaneous

interpretation of witness testimony would be allowed if it could be recorded on a separate recording track: Me DEBORA DE THOMASIS: Maybe for la cuisine, if you want to say, we have an interpreter present, because the trial had started with O’Conner motion back in January and we agreed that the witnesses, they testify in French or in English, whatever language is beneficial for them and that the translation, if there is, will be done simultaneously through an interpreter, but absolutely has to be registered on a second (2 nd ) band, that was what we requested and this is the way we would want to proceed. (…) (Transcript of the hearing held November 27, 2017, p. 2 , line 22, to p. 3, line 7) [ 32 ] However, though the trial itself started in English, it rapidly slid back into an all-French modus operandi .

At the November 28, 2017 hearing, the trial judge queried the attorneys as to the language of the trial: LA COUR: O.k. Bon, avant de commencer, j’ai une question pour les parties. Ce que je n’ai pas compris hier clairement, c’était : Est-ce qu’il y a un

article 530 qui a été demandé? Ce que je veux dire, c’est au niveau de la langue. Est-ce que c’est un procès anglais qu’on fait, vu l’interprétation simultanée qui est enregistrée qui va être reproduite, ou non? Est-ce que le procès anglais avait été demandé, dans le fond? Vous ne le savez pas ou…? Me DEBORA DE THOMASIS, Procureure de la Défense : Initialement, oui. Et lorsque nous avons commencé les requêtes de type « O’Connor » et autre chose… LA COUR : Oui? Me DEBORA DE THOMASIS : … même si les requêtes… En fait, la requête a été produite en français.

Et on a accepté à ce que ce soit, même si on visait en anglais, de procéder avec la traduction simultanée, justement pour ne pas prolonger les débats. Initialement, oui, on avait dit en anglais. Et, par la suite, on a modulé pour faire en sorte qu’on ne perde pas du temps inutile. Donc, je ne sais pas si on l’a fait officiellement. Ça, je ne me souviens pas. Me DANNIE LEBLANC : Non, je ne crois pas. Me DEBORA DE THOMASIS : C’est ça. Alors… LA COUR : Ça va. La raison est très simple: C’est parce que si j’ai des jugements à rendre, est-ce que je les rends en anglais ou en français?

Me DEBORA DE THOMASIS : Je dois vous dire que pour monsieur Dhingra, il ne parle pas français. Donc, oui, pour lui. Sinon, je les traduis constamment. Donc, effectivement, pour les décisions… LA COUR : Est-ce que tout le monde est à l’aise si je fais en anglais… Me DANNIE LEBLANC : Oui. Me DEBORA DE THOMASIS :

Oui. LA COUR : … pour le bénéfice de l’accusé? Me DANNIE LEBLANC : Oui. LA COUR : Bon, parfait. Alors, ça, ça va. (Transcript of the hearing held November 28, 2017, p. 5 , line 9, to p. 7, line 11) [ 33 ] The trial was thereafter conducted almost entirely in French. THE TRIAL TRANSCRIPTS [ 34 ] The appellant appealed his conviction on July 4, 2018.

A litany of successive lawyers represented him in appeal without much activity in the file until the appearance of the appellant’s new current counsel. [ 35 ] Consistent efforts to secure the transcripts were pursued by the appellant’s current counsel since at least May 2019, but to no avail. Despite the assistance of the Crown counsel’s office, including a joint request for transcripts made in October 2019, no transcripts were provided by the relevant government department. [ 36 ] The file was placed on a special roll reserved for appeals which are not progressing.

This special roll often contains appeal files from English-speaking appellants in light of the systemic problems with securing trial transcripts, particularly English transcripts, as will be further discussed. [ 37 ] A bench of the Court held a special hearing on the file on December 16, 2019. As is all too often the case where English trial transcripts are at issue, counsel for the appellant informed the Court of difficulties encountered in securing the trial transcripts. As is its usual practice in such circumstances, the Court deferred the file to a hearing on the special roll to be held on March 23, 2020.

That subsequent special hearing was not held as a result the Covid-19 pandemic. [ 38 ] On August 6, 2020, the appellant applied for his release pending the disposition of his appeal on the ground that he had not been able to secure the transcripts of the trial itself nor the transcripts of the English

interpretation carried out at trial. [ 39 ] As previously noted, on August 27, 2020, I issued orders to ensure the preparation and filing of such transcripts by November 6, 2020, at the latest. Pending the filing of the transcripts, I also deferred the application for the appellant’s release to the panel of the Court sitting on November 23, 2020. [ 40 ] Since these orders were issued, numerous trial transcripts have been provided. Nevertheless, some 18 months have elapsed since the transcripts were first requested by the appellant’s counsel.

Unfortunately, not only have the transcripts been provided late, they are still incomplete as well as deficient in many aspects. [ 41 ] Counsel for the appellant indicated to the Court that no transcripts of the

interpretation of the hearings held September 28, 2016, October 12, 2016, December 6, 2016, June 9, 2017, June 21, 2017, June 28, 2017, October 2, 2017, December 6, 2017, and December 14, 2017 have been provided, presumably because the

interpretation was not recorded or its recording was lost. This was not disputed by Crown counsel. [ 42 ] Counsel for the appellant further indicated that only partial transcripts of the

interpretation of the hearings held on March 22, 2017, April 11, 2017, August 31, 2017, November 29, 2017, December 1, 2017, December 4, 2017, December 8, 2017, January 25, 2018, and January 29, 2018 have been provided, presumably as a result of failures in the recording equipment or of unrecorded whisper

interpretation. Again, this was not disputed by Crown counsel. [ 43 ] In light of this sorry state of affairs, the appellant now seeks to raise new grounds of appeal based on the violation of his linguistic rights, notably his rights under s. 530 of the Criminal Code . He further seeks, in addition to his release, the immediate quashing of his conviction and an immediate order for a new trial.

As the appellant’s counsel put it to the Court, an English-speaking accused individual was given a de facto French trial and provided with a deficient simultaneous English translation, the record of which has been lost in part. THE SYSTEMIC PROBLEMS WITH SECURING TRIAL TRANSCRIPTS AND HOW TO ADDRESS THEM [ 44 ] The problems faced by litigants in securing trial transcripts are not new. These problems are particularly acute with English- language transcripts. This is a recurring systemic issue which, regrettably, puts into question the proper administration of criminal justice in Quebec.

This is a serious matter which, disappointingly, has been left unresolved by government. [ 45 ] Almost every other week, a panel of the Court must deal with issues of delayed trial transcripts in criminal appeals which have been placed on the special roll of the Court. Consequently, the current and unmitigated delays in producing transcripts, particularly with regard to English-language criminal proceedings, have been noted many times by this Court. Here are but a few examples: - Régis c.

R. , 2016 QCCA 1826 , para. 1 : “Vu que la transcription des notes sténographiques tarde par suite d’un manque de ressources administratives dont l’appelant ne peut être tenu responsable”;

- Gabriel v. R. , 2016 QCCA 2056 , para. 4 : “[…] According to a letter from the office of the Minister of Justice, only seven (7) bilingual stenographers accept to transcribe English trials for the Province”; - Smith v. R. , 2017 QCCA 162 , para. 6 : “The difficulties in prosecuting these appeals appears to result from delays in the preparation of the trial transcripts caused by lack of resources with respect to bilingual official stenographers with the Ministry of Justice”; - R. v.

Rice , 2018 QCCA 198 , para. 69 : The “current and unmitigated delays in producing transcripts that plague Quebec, particularly with regard to English-language proceedings”; - Thandapanithesigar v. R. , 2018 QCCA 1511 , para. 1 : “L’administration de la justice est une fois de plus placée dans une situation inacceptable en raison, semble-t-il, du manque criant de sténographes travaillant avec la langue anglaise. Ceci crée un délai intolérable de plus d’un an pour transcrire 24 jours de procès”; - Girgis c.

R. , 2018 QCCA 2181 , paras. 1-2 : “Il manque la transcription d’une journée de procès […] S’agissant de « note sténographiques « bilingues » » comme l’écrit l’appelant, on l’informe qu’un délai de six (6) mois sera nécessaire pour effectuer le travail […]”; - Espino c.

R. , 2020 QCCA 836 , para. 9 : “Il est malheureux que la lenteur notoire de l’administration de la justice au Québec, et plus particulièrement dans le district de Montréal, pour obtenir la confection des notes sténographiques nécessaires à un appel en matière criminelle force la réflexion sur la mise en liberté d’une personne qui représente néanmoins un risque pour la sécurité du public. Cela ne devrait pas se présenter”; - Sorella c. R., 2020 QCCA 896 , para. 30 : “J’ajoute que malgré le dépôt de l’avis d’appel en mars 2019, le mémoire de l’appelante n’est pas complet .

Son avocat m’explique que le retard est causé par la préparation des transcriptions, une explication que les juges d’appels sont, malheureusement, habitués d’entendre. [C]es délais sont susceptibles de miner la confiance du public dans l’administration de la justice, mais ils ne sont pas attribuables à l’appelante ni, dans la grande majorité des cas, aux parties, mais au système lui-même. […]”. [ 46 ] The practical impacts of this state of affairs are excessive delays in perfecting appeals. The delays can be quite long. As noted in Girgis c.

R. , above, in that case, six months were required to obtain a single day of trial transcripts. In Thandapanithesigar v. R. , above, the Court noted that more than a year would be required to transcribe 24 trial days. In the present case, some 18 months have elapsed since the transcripts were first requested and they are still incomplete. It is undisputable that these systemic delays disproportionately affect English-speaking appellants. [ 47 ]

Section 11(

b) of the Canadian Charter of Rights and Freedoms sets out that any person charged with an offence has the constitutional right to be tried within a reasonable timeframe. Much judicial attention has been brought to that right, culminating most recently in R. v. Jordan , 2016 SCC 27 , [2016] 1 S.C.R. 631 and R. v. Cody , 2017 SCC 31 , [2017] 1 S.C.R. 659.

Though the guidelines set out in those judgments do not extend to the sentencing phase or to appellate proceedings, these judgments nevertheless underscore an overall pressing judicial preoccupation with ensuring that all criminal proceedings be pursued in a timely fashion. The issue of delay is particularly pressing where the continued incarceration of an individual is at issue.

However, even when continued incarceration is not at issue, any unreasonable delay in criminal proceedings, including appellate proceedings, tends to bring the administration of justice into disrepute, and, if tolerated long enough, may affect the very credibility of the criminal justice system itself. [ 48 ] As Justices Moldaver, Karakatsanis and Brown noted in Jordan , at para. 19 , the right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice, a right which notably finds expression in the familiar maxim: “Justice delayed is justice denied”.

Unreasonable delay may result in a denial of justice to the accused, victims and the public as a whole. This is also true when appellate proceedings are subject to unreasonable delay, irrespective of whether the right to an expeditious appeal is constitutionally guaranteed or not (a matter which we need not deal with in these proceedings). [ 49 ] When a convicted appellant appeals the verdict and remains incarcerated during the appellate proceedings, there exists a possibility that he will have suffered a period of undue incarceration should he eventually succeed in appeal.

This is why release pending appeal is often granted insofar as the criteria set out in the Criminal Code and discussed in Oland are satisfied.

However, when these criteria do not allow for the release of the appellant pending the disposition of the appeal, the continued incarceration of the appellant imposes an additional duty on all participants in the appellate proceedings, including defence and Crown counsel as well as those responsible for the preparation of the appeal record, to act diligently, so as to avoid an undue period of incarceration in the event of a successful appeal. [ 50 ] Even when the appellant is not incarcerated during the appeal, unreasonable delay tends to discredit the appeal process itself.

This operates to the detriment of the appeal process and can sap the public’s confidence in that process. [ 51 ] As noted in Jordan , at para. 40 , in the context of criminal trials, inefficient practices and inadequate institutional resources are often accepted as the norm and give rise to ever-increasing delay. This is also true with respect to appellate proceedings in Quebec, as already canvassed above. There are many bottlenecks in the system which may eventually need to be addressed by the Court in appropriate cases.

In this case, we are concerned with one of the principal bottlenecks of the criminal appeal process, namely the preparation and production of trial transcripts. A culture of complacency, of neglect and of underfunding has unfortunately characterized the preparation of appeal records, often leading to unreasonable delay in the prosecution of appeals.

This is most often reflected in the inadequacies related to supplying timely trial transcripts, particularly with regard to English-language transcripts. [ 52 ] It is incumbent upon this Court to address that issue both so as to avoid injustice to appellants – particularly incarcerated appellants – who are subject to unreasonable appellate delays resulting from state inaction and to ensure the continued trust of the public in the criminal appeal process itself. [ 53 ] The first question to decide is when should the delay in supplying trial transcripts be deemed unreasonable?

The answer must be based on the law and not on some subjective assessment. The law itself sets out guidelines as to the delay within which criminal appeals should normally be prosecuted. These provide the framework within which unreasonable delay in appeal may be determined and

assessed. [ 54 ] Sections 482 and 482.1 Cr.C . provide for the authority of the Court to make rules that apply to criminal appeals, including rules to regulate practice and procedure in criminal matters. The Court has adopted such rules, which are set out in the Rules of the Court of Appeal of Quebec in Criminal Matters , SI/2018-96 , (2018) 152 Can. Gaz.,

Part II, p. 3955 (the “ Rules ”). Though this appeal is governed by the previous rules rather than by the rules which entered into force on January 1, 2019, the timelines set out in the new rules and the previous rules are essentially the same. [ 55 ] The appellant’s brief must contain the depositions or extracts thereof necessary for the Court to decide the issues in dispute: s. 39(

c) of the Rules . Moreover, when

interpretation is required pursuant to s. 530 Cr.C . , the record of the proceedings during the preliminary inquiry or trial must include a transcript of everything that was said during those proceedings in the official language in which it was said, a transcript of any

interpretation into the other official language of what was said, and any documentary evidence: s. 530.1 (

g) Cr.C . [ 56 ] These depositions or extracts are usually filed in the form of trial transcripts, unless the parties agree to a joint statement of fact: s. 29 of the Rules .

Section 682(2) Cr.C . further mandates that the transcripts are furnished to the Court, except insofar as it is dispensed with by order of a judge. [ 57 ] At the request of the appellant, it is the responsibility of the clerk of the trial court to take the necessary steps to obtain, as soon as possible, the complete transcripts of the proceedings and the exhibits, unless otherwise dispensed with by the parties: s. 29 of the Rules . [ 58 ] Once the transcripts and exhibits are complete, the clerk of the trial court must inform the parties and the clerk of this Court that the record on appeal is complete, whereupon the appellant may then take immediate possession of it: para. 1 of s. 30 of the Rules .

However, if the preparation of a transcript incurs costs, the clerk of the trial court may require payment in advance: para. 2 of s. 30 of the Rules . [ 59 ] It may be inferred that the “normal” delay for preparing the transcripts is three months from the time they are requested. This is generally consistent with certain other appellate processes in Canada: (

a) In British Columbia, the appellant must file an appeal book and transcript as may be required within 60 days after filing the notice of appeal: British Columbia Court of Appeal Criminal Appeal Rules , 1986, SI/86-137, s.7 (

b) In the Yukon, the appeal book and transcripts must be filed within 60 days after the filing of the notice of appeal: Yukon Territory Court of Appel Criminal Appeal Rules , 1993, SI/03-93, s. 7 (

c) In Alberta, where the appeal concerns a conviction, the appeal record and transcripts must be filed within four months after the notice of appeal: The Court of Appeal of Alberta Criminal Appeal Rules , SI/2018-34, s. 16.12(3) (d); (

d) In Manitoba, where the issue in appeal relates to conviction, the appellant must file his factum within 45 days after receipt of the transcript at trial; if the transcript is not received within four months after the initiating document is filed then, save exception, the appeal may be deemed abandoned if the appeal is not perfected within 30 days of a notice to this effect: Manitoba criminal Appeal Rules , SI/92- 106, s. 20 and s. 26 ; (

e) In Ontario, the transcripts are to be prepared and provided within 90 days from which they have been ordered: Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario , 1 March 2017, s. 9.4(6); the appellant is then required to perfect the appeal within 90 days from the filing of transcripts: Ontario Court of Appeal Criminal Appeal Rules , SI/93-169, s. 18(3) . [ 60 ] Consequently, though no formal timeframe is provided in Quebec with respect to the preparation of the trial transcripts by the clerk of the trial court, it may be reasonably surmised from the above that the transcripts should normally be provided within a three month timeframe from date they are requested from the clerk of the trial court.

Indeed, if parties in a civil appeal in Quebec are required to prepare the appeal record within three months (art. 373 of the Code of Civil Procedure ), it seems logical to infer that a similar timeline for the state to produce the transcripts should be considered “normal” in appeals concerning criminal matters. This, moreover, is the usual timeframe to prepare criminal appeal transcripts for the purposes of an appeal in Ontario: Practice Direction Concerning Criminal Appeals at the Court of Appeal for Ontario , 1 March 2017, s. 9.4(6).

When this three months’ timeframe is not complied with, which is unfortunately often the case, when then does the delay in preparing the appeal record become unreasonable? [ 61 ]

Section 75 of the Rules provides some indication. Under that provision, a criminal appeal may be deemed abandoned if it is not ready to be placed on the Court’s regular roll “within six months following the filing of the notice of appeal provided for in s. 30 or one year following the filing of the notice of appeal or from the date of the judgment granting leave to appeal / dans les six mois qui suivent la production de l’avis prévu à l’article 30 ou une année après le dépôt de l’avis d’appel ou du jugement autorisant l’appel ”.

The notice under s. 30 is provided by the clerk of the trial court when the appeal record is ready. [ 62 ] Consequently, insofar as the appellant has notified the trial clerk in accordance with s. 29 of the Rules and provided, if need be, for the costs of the transcripts as set out under para. 2 of s. 30 of the Rules , by analogy with s. 75 of the Rules it can be surmised that a delay exceeding six months to prepare the trial record, calculated from the date the record was requested and the costs of transcripts was provided, can be deemed excessive and even unreasonable if the circumstances warrant.

In any event, a delay exceeding one year should always be considered unreasonable. [ 63 ] In simple cases involving a few days of trial transcripts, the unreasonable character of the delay to provide transcripts may be much shorter. In any event, an estimated or actual delay of six months should be deemed suspect, while an estimated or actual delay exceeding twelve months should always be considered unreasonable. [ 64 ] The second issue to address is one of remedies. When the estimated or actual delay in providing trial transcripts is unreasonable,

what remedies can the Court provide? There has been little discussion of this to date in light of the ongoing practice of denouncing the delay while taking few or no steps to remedy the problem. Unfortunately, judicial denunciation of the systemic nature of the delay has produced little or no result.

A paradigm change in approach is therefore necessary since litigants in criminal proceedings should not be left without judicial remedies when the delay to prosecute a criminal appeal becomes unreasonable, more particularly when the appellant is incarcerated. [ 65 ] When delay in prosecuting an appeal results from the appellant’s neglect, s. 75 of the Rules provides for a remedy in the form of a declaration of abandonment of the appeal.

Obviously, that remedy is inappropriate when the delay does not stem from the appellant but rather from the State, as is the case here with regard to trial transcripts. [ 66 ] The remedy in such situations will depend on the circumstances of each case. [ 67 ] When the appellant is incarcerated, estimated or actual unreasonable delay in prosecuting the appeal resulting from state inaction may possibly be taken into account in balancing the tension between the enforceability of a verdict and its review in appeal, a balancing exercise which is at the heart of the analysis with respect to an application for release from detention pending the determination of an appeal.

The well-known criteria for granting release from detention during an appeal are set out in s. 679(3) Cr.C . It must be established that (1) the appeal is not frivolous; (2) the appellant will surrender himself into custody in accordance with the terms of the order; and (3) the appellant’s detention is not necessary in the public interest. That last criterion has two components: (

a) public safety; and (

b) public confidence in the administration of justice: R. v. Farinacci (1993), 86 C.C.C. (3d) 31 (ON CA), pp. 47-48. [ 68 ] The first criterion requires a judge to examine the grounds of appeal with a view to ensuring that they are not frivolous; this is generally recognized as a low bar: Oland , para. 20; Xanthoudakis v. R. , 2016 QCCA 1809 , paras. 4-7 . The second criterion requires the applicant to satisfy a judge that he will not flee the jurisdiction and will surrender himself into custody as required.

The first component of the third criterion requires the applicant to satisfy a judge that he does not pose a substantial risk to public safety. The second component of the third criterion requires the applicant to satisfy a judge that public confidence in the administration of justice will not be detrimentally affected by his release.

It is within the context of this second component of the third criterion that unreasonable delay in securing trial transcripts may be taken into account. [ 69 ] With respect to public confidence in the administration of justice, pertinent factors include an assessment of the gravity of the offence, the circumstances surrounding the commission of the offence and the potential length of imprisonment: Oland , paras. 37-38.

Other appropriate factors include public safety concerns that fall short of the substantial risk mark and lingering flight risks that do not rise to the substantial risk level under the second criterion: Oland , para. 39. The assessment of the strength of the appeal, which is taken as an adaptation of the factor prescribed by s. 515(10) ( c )(

i) Cr.C . , is also central to the analysis: Oland , paras. 40-41, 44-46 and 66. [ 70 ] These factors must all be balanced by the judge deciding the release application, who is “undoubtedly required to draw on [his or her] legal expertise and experience in evaluating the factors that inform public confidence, including the strength of the grounds of appeal, the seriousness of the offence, public safety and flight risks”: Oland , para. 47. [ 71 ] However, as the above quote from Oland indicates by the use of the word ʺincluding”, the factors to be considered in this final balancing exercise are not limited to the seriousness of the offence, public safety, flight risk and the strength of the appeal.

Other factors pertinent to preserving public confidence in the administration of justice may also be relevant; for examples, see Oland , paras. 39, 46 and 48. When unreasonable delay in providing trial transcripts results from state inaction, then this is one of these additional factors which may be considered in the overall balancing exercise.

The case at hand is a patent example as to why such a factor may be considered in the analysis. [ 72 ] Not only has the disposition of the appellant’s appeal now been delayed for a very long period, but the analysis of the factors related to the risk to public safety and to the strength of the appeal were, until very recently, rendered virtually impossible in this case because of the absence of trial transcripts, including transcripts of the pertinent judgments rendered during the course of the trial.

In particular, the judgment of December 6, 2016, revoking the interim release, was not made available until recently due to lack of transcripts. Moreover, the judgments dismissing the appellant’s Jordan -type applications were also unavailable until recently, also due to lack of transcripts, rendering difficult, if not impossible, the analysis of the strength of the appellant’s grounds of appeal with respect to these judgments.

Consequently, the appellant has been precluded not only from prosecuting his appeal in a timely fashion, but also from seeking his release pending the disposition of his appeal in a timely fashion. [ 73 ] The net result is that the appellant has, until recently, been held indefinitely in limbo as a result of never-ending delays in obtaining the transcripts required to prosecute his appeal and to argue for his release pending the disposition of his appeal. [ 74 ] Public confidence in the administration of justice is to be measured through the eyes of a reasonable member of the public, that is to say, someone who is thoughtful, dispassionate, informed of the circumstances of the case and respectful of society’s fundamental values: R. v.

St-Cloud , 2015 SCC 27 , [2015] 2 S.C.R. 328, paras. 74-80 .

A reasonable member of the Canadian public would not only consider that unreasonable delay in the provision of trial transcripts is one of the pertinent factors in assessing confidence in the administration of justice; that person would further, quite rightly, deem it shocking that those responsible for the administration of justice have been incapable of securing trial transcripts for close to 18 months in a case where the appellant is incarcerated. [ 75 ] Consequently, unreasonable delay in providing trial transcripts resulting from state inaction is a factor which may be taken into account in the overall balancing exercise with respect to assessing the confidence of the public in the administration of justice in the context of an application for release pending the disposition of an appeal from a criminal conviction. [ 76 ] This factor is not, however, necessarily determinative of the decision to release an appellant pending the disposition of the appeal.

If the appellant presents a serious flight risk or poses a substantial risk to public safety, his release should be denied. However, where the appellant’s grounds of appeal clearly surpass the “not frivolous” criterion and the appellant himself does not present a serious flight risk or a substantial risk to public safety, unreasonable delay in prosecuting the appeal resulting from state inaction may be taken into account in the overall balancing exercise called for under Oland with regard to the second component of the third criterion.

[77] As Moldaver, J. stated at para. 45 of Oland: [45] In the end, appellate judges can be counted on to form their own “preliminary assessment” of the strength of an appeal basedupon their knowledge and experience. This assessment, it should be emphasized, is not a matter of guesswork. It will generally be basedon material that counsel have provided, including aspects of the record that are pertinent to the grounds of appeal raised, along withrelevant authorities.

In undertaking this exercise, appellate judges will of course remain mindful that our justice system is not infallibleand that a meaningful review process is essential to maintain public confidence in the administration of justice.

Thus, there is a broaderpublic interest in reviewability that transcends an individual’s interest in any given case. (Emphasis added) [78] When the actual “preliminary assessment” of the strength of the appeal becomes difficult because aspects of the record that arepertinent to the grounds of appeal raised cannot be produced in a reasonable timeframe as a result of state inaction, or when the delay inactually prosecuting an appeal becomes unreasonable as a result of such inaction, thus impeding a meaningful appeal review processwhich is essential to maintaining the public confidence in the administration of justice, then it may well be pertinent to take into accountthe delay resulting from state inaction in the overall balancing exercise where the appellant presents neither a serious flight risk nor asignificant risk to public safety. [79] When an appellant cannot be released pending the result of the appeal, notably because he presents a flight risk or a risk to publicsafety, then the available judicial remedy may well be to set an accelerated hearing date for the appeal on the basis of the availablepartial record.

In this regard, it is useful to note that when the release of the appellant is denied, s. 679(10) Cr.C. allows a judge of theCourt to give necessary directions for expediting the appeal. [80] That remedy may surely be contemplated when the very purpose of the appeal is to seek a new trial. Indeed, a new trial may beordered by the Court in certain circumstances when the appeal record is deficient as a result of state error so as to actually prejudice anappellant in advancing a ground of appeal: R. v. Hayes, (SCC), [1989] 1 S.C.R. 44, p. 48; R. v. Hester, 2015 QCCA1501; R. v. Mills, 2019 ONCA 940, para. 79.

It may well be that unreasonable delay in producing the trial record as a result of stateinaction could lead to the same conclusion. [81] That being said, such a remedy may be inappropriate when the appellant seeks an acquittal. In such cases, rather than obtainingan acquittal in appeal, the appellant will have to bear the burden of a new trial. There may be cases where such a result is unavoidable. Inother cases, the appellant may wish to wait for the full record to be made available even if the delay to do so is unreasonable.

Theappropriate remedy thus depends on the particular circumstances of each case. [82] Another possible remedy to delay resulting from state inaction in supplying trial transcripts may be found in s. 683(1)(

a) Cr.C.,which allows the Court to order the production of any writing, exhibit or other thing connected with the proceedings. It may well be that,in appropriate circumstances, the Court could contemplate ordering a private stenographer to prepare the transcripts as contemplatedunder para. 3 of s. 29 of the Rules. [83] We need not list here a compendium of available remedies nor determine all remedies that should be contemplated andeventually applied when the prosecution of an appeal is unreasonably delayed as a result of state inaction.

As already noted, theappropriate remedy in each case will depend on the circumstances. The point being made, however, is that an appropriate remedy shouldbe contemplated in each case and applied where feasible. In this regard, it will be incumbent on both defence and Crown counsel topresent the Court with remedial alternatives in specific cases where appellate delays become unreasonable.

APPLICATION TO THIS CASE [84] The appellant argues that not only does he satisfy the criteria for his release – a matter further discussed below - he adds that hisgrounds of appeal based on the violation of his linguistic rights are strong enough in this case to justify immediately quashing hisconviction and immediately ordering a new trial. The Court must therefore first determine whether it may grant such remedies at thisstage of the proceedings and, if so, whether it would be appropriate to do so. [85]

Section 530 Cr.C. sets out certain statutory rights with respect to the language of a criminal trial. In essence, an accused whoselanguage is one of the official languages of Canada has a right to be tried in that official language before a judge who speaks thatlanguage, provided an application for this purpose is made in a timely fashion. The courts called upon to hold criminal trials are thereforerequired to be institutionally bilingual in order to provide for the equal use of the two official languages in trials. This is a substantiveright: R. v. Beaulac, (SCC), [1999] 1 S.C.R. 768, paras. 28 and 31.

If an order is granted under s. 530 Cr.C., the trialmust comply with the provisions of s. 530.1 Cr.C., which sets out various linguistic rights afforded to an accused during his trial. [86] Irrespective of whether an order under s. 530 has been issued, s. 14 of the Canadian Charter of Rights and Freedoms (“Charter”)also confers the right to the assistance of an interpreter to an accused who does not understand or speak the language in which the trial isconducted. As noted in R. v. Tran, (SCC), [1994] 2 S.C.R. 951, p. 985, s. 14 of the Charter includes the right to a certainstandard of

interpretation, which is defined in terms of continuity, precision, impartiality, competency and contemporaneity. [87] The appellant asserts that these rights have been patently violated in this case, thus justifying an immediate disposition of hisappeal resulting in an immediate order for a new trial to be held in a manner that respects his constitutional and statutory linguistic rights. [88] It would be inappropriate for the Court to issue such orders at this stage of the proceedings.

The appellant originally sought hisrelease pending the disposition of his appeal on the basis that he could not secure the trial transcripts in a timely manner and otherwisesatisfied the criteria for his release.

At the time that application was first made, the grounds of appeal which were initially raised by theappellant did not include any alleged violation to his linguistic rights. [89] It is only after certain trial transcripts were finally released to the appellant as a result of the order issued August 27, 2020, thatthe appellant’s new counsel first raised the issue of linguistic rights in arguments submitted in writing to the Court on November 2, 2020.

The Crown is entitled to adequately analyze these new grounds of appeal so as to properly respond to them. Like the appellant, the Crown has only recently received the available trial transcripts and partial transcripts of the English

interpretation of the trial. Moreover, neither of the parties has made proper written submissions with respect to any of the grounds of appeal, including the grounds based on alleged violations of linguistic rights. [ 90 ] In these circumstances, the appellant’s request for an immediate disposition of his appeal and an immediate order for a new trial must be denied.

This will not preclude the appellant from raising the alleged violations of his linguistic rights when the Court hears arguments on the merits of the appeal. [ 91 ] This leads to the issue of whether the appellant should be released pending the determination of his appeal. First criterion: Is the appeal frivolous ? [ 92 ] The appellant bears the burden of establishing that his grounds of appeal are “not frivolous”. As previously noted, this is widely recognized as being a low bar.

At the hearing, the appellant’s new counsel placed emphasis principally on the violations of the appellant’s linguistic rights and on the right to be tried within a reasonable time. [ 93 ] The circumstances in which the trial was held with respect to language, as abundantly described above, do raise serious issues with respect to the linguistic rights of the appellant at trial, both under the Criminal Code and under the Charter . Likewise, the trial delays in this case exceeded the 30-month guideline set out in Jordan , but the appellant’s applications for a stay of proceedings were nevertheless dismissed.

The appellant thus satisfies the first criterion. Second criterion: The flight risk [ 94 ] The Crown conceded at the hearing of the application that the appellant does not present a serious flight risk. [ 95 ] Though the appellant may have relatives abroad, his immediate family resides in the Montreal region. He was also initially released at the beginning of his trial and did not then show signs of seeking to flee the jurisdiction. [ 96 ] Consequently, the second criterion for release from detention is also satisfied.

First component of the third criterion: Risk to public safety [ 97 ] The initial charges laid against the appellant on December 13, 2013, for which he was eventually found guilty, relate to the possession, trafficking and importation of 94 kg of cocaine and 15 kg of crystal meth in November 2013.

The drugs were imported from the United States by the appellant’s girlfriend through the Lacolle border post, where a corrupt border patrol officer, Stephanie McClelland, was working. [ 98 ] As serious as these charges were, they did not impede the appellant from seeking and obtaining an interim release pending his trial. [ 99 ] However, as previously noted, the appellant’s interim release was revoked as a result of new drug-related charges brought against him for similar crimes involving the possession, trafficking and importation of a large quantity of cocaine (182 kg) in December 2014 while he was subject to conditions of release. [ 100 ] Hearings were held in the fall of 2016 before Judge Gilles Cadieux of the Court of Québec with respect to the revocation of the appellant’s interim release.

Substantial evidence respecting both criminal schemes was there presented. Since the December 2014 drug trafficking and importation scheme was similar to the one carried out in November 2013 and since the second scheme was executed while the appellant was subject to conditions of release, Cadieux, J.C.Q. concluded that there was a high likelihood that the appellant would reoffend while released.

Cadieux, J.C.Q. further concluded that the appellant’s continued release after having participated in two major drug importation and trafficking schemes, one of which occurred while he was subject to release conditions, would undermine the confidence of the public in the administration of justice. [ 101 ] As previously noted, the charges related to the December 2014 drug importation and trafficking scheme were subsequently subjected to a nolle prosequi , the legal effect of which is set out in s. 579(2) Cr.C . : if are not recommenced within one year of the nolle prosequi , “the proceedings shall be deemed never to have been commenced / les procédures sont réputées n’avoir jamais été engagées".

As a result, there are now no pending criminal charges against the appellant with respect to any offence committed while he was at large under an interim release order and any previous charges related thereto are deemed never to have been commenced. [ 102 ] In these circumstances, can the Court nevertheless take into account the evidence submitted before Cadieux, C.J.Q. with respect to the second drug trafficking and importation scheme in deciding whether the appellant presents a risk to public safety? There does not appear to be any judicial decision directly addressing this issue. However, a purposive

interpretation of the provisions of the Criminal Code pertaining to interim release leads to the conclusion that the Court may consider this evidence. [ 103 ]

Section 518 Cr.C . sets out broad evidentiary parameters with respect to the evidence which may be taken into account in determining whether to release an accused pending trial. Though that

section does not strictly apply to an application for release pending the disposition of an appeal governed by s. 679 Cr.C . , it may be considered an appropriate guideline as to the type of evidence which may be taken into account in the context of a s. 679 application: see, by analogy, paras. 31-36 of Oland with respect to the consideration in appeal of the factors set out in s. 515(10) (

c) Cr.C. [ 104 ] There are practically no prohibitions as regards the evidence that may be taken into account to show why the continued detention of an accused in custody is justified: Toronto Star Newspaper Ltd. v. Canada , 2010 SCC 21 , [2010] 1 S.C.R. 721, para. 28 . Pursuant to s. 518(1) (

e) Cr.C . , any evidence that is “credible or trustworthy (…) in the circumstances of each case plausible / digne de foi dans les circonstances de l’espèce ” may be taken into account, including, according to the Supreme Court of Canada, “ambiguous post-offence

conduct” and “untested similar facts”: Ibid . Moreover, under s. 518(1) (

a) Cr.C . , the justice may “make such inquiries, on oath or otherwise, of and concerning the accused as he considers advisable / faire, auprès du prévenu ou à son sujet, sous serment ou autrement, les enquêtes qu’il estime opportunes ”. This is a broad discretion.

There appears to be no impediment to considering evidence of criminal activities carried out by an accused even though these activities may not have been the subject of a formal criminal charge, insofar as the appellant has been provided an opportunity to respond to such evidence. [ 105 ] Consequently, notwithstanding the nolle prosequi , it is possible for this Court to take into account both the conviction of the appellant with respect to the November 2013 drug trafficking and importation charges, as well as the evidence submitted before Cadieux, J.C.Q. with respect to the similar drug trafficking and importation scheme carried out in December 2014, since the appellant was afforded an opportunity to respond to this evidence before Cadieux, J.C.Q. [ 106 ] Based solely on the evidence submitted before Cadieux, J.C.Q., there are reasonable grounds to believe that the appellant actively participated in the December 2014 drug trafficking and importation scheme while he was at large under an interim release order.

It would be fastidious to review the entirety of this evidence. Suffice it to note that the evidence shows that the appellant had regular telephone or text communications with a corrupt border guard working at the Lacolle border station, Stéphanie McClelland, at the time the drugs were imported into Canada through that border post in December 2014. The appellant also had regular telephone or text communications at the same time with those who were subsequently arrested for having actually crossed the border with the drugs.

The appellant tried 24 times to call the individual driving the car across the border shortly after that individual was arrested. That individual subsequently pleaded guilty. When the appellant himself was arrested shortly thereafter, he had 17 cellular phones at his residence, as well as over $110,000 in cash, and equipment to scramble radio communications.

Physical surveillance of the appellant carried out in early 2014 showed that he did not appear to have any legitimate work-related activities. [ 107 ] This has serious consequences with respect to the analysis of the risk to public safety. [ 108 ] First, taken alone, the drug-related offences of November 2013 for which the appellant was convicted are very serious. They involve the large-scale importation of cocaine and crystal meth. The ravages caused to public health and to the health of individuals from the use of these drugs are real and well documented.

The substances carried into Canada at the behest of the appellant are illicit and cause untold damage. Importation of these substances is a vital link in ensuring the availability of these drugs in Canada.

The appellant’s involvement in such activities is therefore deeply condemnable. [ 109 ] Second, the fact that the appellant, notwithstanding that he had been charged with such serious offences, would proceed while at large under an interim release order to actively participate in another major drug trafficking and importation scheme, involving even more drugs, shows contempt on his part for the law and the authority of the courts.

The appellant’s actions demonstrate that he cannot be trusted to respect the conditions of his release and that he does not hesitate to commit major crimes when released on conditions. [ 110 ] Though the corrupt border guard, Stéphanie McLelland, is now incarcerated and can no longer assist the appellant with his drug importation schemes, the demonstrated impudence of the appellant leads to the conclusion that he presents a serious security risk to the public. [ 111 ] In these circumstances, the appellant has failed to satisfy his burden to convince the Court that his release pending the disposition of his appeal would not present a serious risk to the public’s safety.

Second component of the third criterion: Confidence of the public in the administration of justice [ 112 ] Since the appellant does not satisfy the first component of the second criterion, it is not strictly necessary to determine if his release would affect the public’s confidence in the administration of justice.

However, in light of the observations made above with respect to remedial measures to alleviate the unreasonable delay in supplying trial transcripts in this case, certain additional comments on this issue are appropriate. [ 113 ] Had the appellant satisfied the criterion pertaining to public safety, the Court would have had to carry out the review called for under Oland , balancing the lingering public safety or flight concerns with respect to the appellant with the seriousness of his grounds of appeal and the other factors identified in Oland .

In light of the unreasonable delay in making the trial record available to the appellant, a delay largely attributable to state inaction, that delay could also have been considered in the balancing exercise. This balancing exercise, comprising in the mix the unreasonable delay, may well have resulted in the release of the appellant pending the disposition of his appeal, were it not for his failure to satisfy the first component pertaining to public safety.

The appropriate remedy in this case [ 114 ] As previously noted, when an appellant cannot be released pending the result of the appeal, notably because he presents a flight risk or a risk to public safety, then the available judicial remedy to unreasonable delay resulting from state inaction in making the trial record available may well be to set an accelerated hearing date for the appeal on the basis of the available partial record. [ 115 ] In this case, a large part of the trial transcripts have been provided, though there appear to be numerous and serious gaps in the transcripts of the English

interpretation of the trial proceedings. These gaps in the transcript of the English

interpretation can certainly be raised by the appellant in the context of his ground of appeal with respect to alleged violations of his linguistic rights at trial. In any event, should the trial transcripts be otherwise deficient so as to preclude a meaningful appellate review, the appellant can also raise that issue in appeal so as to seek an order for a new trial. [ 116 ] Though the clerk of the trial court has not informed the parties and the clerk of this Court, pursuant to s. 30 of the Rules , that the record on appeal is complete, presumably because of the missing transcripts of the English

interpretation, it would be inappropriate to wait any further for the s. 30 notice. [ 117 ] Moreover, the appeal itself should be heard under an accelerated

schedule and placed on a special roll for that purpose. Consequently, to accelerate the hearing of the appeal, the 15 volumes of transcripts of the proceedings and of the

interpretation of the

proceedings filed by the appellant on November 2, 2020, within the context of his application for release, need not be reproduced in the parties’ respective appeal briefs; these transcripts will be deemed filed for the purposes of the appeal on the merits and may be referred to by the parties in their respective argument without the need to reproduce them anew. This will save both time and expense in preparing the parties' respective briefs. [ 118 ] The appeal itself will be set to be heard on June 11, 2021.

In the meantime, the parties will prepare their respective briefs, including their written submissions, on the basis of the available record and in accordance with an accelerated timetable. CONCLUSIONS [ 119 ] I therefore propose that the Court (

a) allow the appellant to raise additional grounds of appeal based on alleged violations of his linguistic rights at trial; (

b) dismiss the appellant’s application for the immediate quashing of his conviction and for an immediate order of a new trial; (

c) dismiss the appellant’s application for release from custody pending the disposition of the appeal; and (

d) order that the appeal proceed on the available record and in accordance with an accelerated timetable. ROBERT M. MAINVILLE, J.A. Traduction française non-officielle de l’arrêt de la Cour Dhingra c. R. 2021 QCCA 22 COUR D’APPEL CANADA PROVINCE DE QUÉBEC GREFFE DE MONTREAL No.: 500-10-006787-186 (500-01-099546-134) DATE: 12 janvier 2021 CORAM: LES HONORABLES ALLAN R. HILTON, J.C.A ROBERT M. MAINVILLE, J.C.A. STÉPHANE SANSFAÇON, J.C.A. SONINDER DHINGRA APPELANT – accusé c.

LA REINE INTIMÉE – poursuivante ARRÊT [1] Le 6 juin 2018, la juge Flavia Longo de la Cour du Québec déclare l’appelant coupable de diverses infractions de trafic et d’importation de drogue et de conspiration criminelle afin de trafiquer des drogues. L’appelant porte sa condamnation en appel. [2] L’appelant demande sa mise en liberté pendant l’instance d’appel. Il cherche aussi à ajouter à ses moyens d’appel des violations à ses droits linguistiques.

De plus, il demande l’annulation immédiate de sa condamnation sur le fondement de ces moyens additionnels d’appel de même qu’une ordonnance immédiate de nouveau procès. [3] Pour les motifs du juge Mainville, auxquels souscrivent les juges Hilton et Sansfaçon, LA COUR : [4] PERMET à l’appelant d’invoquer des moyens additionnels d’appel fondés sur des violations alléguées de ses droits linguistiques lors du procès; [5] REJETTE la demande de l’appelant pour l’annulation immédiate du verdict de culpabilité et pour une ordonnance immédiate de nouveau procès; [6] REJETTE la demande de l’appelant pour sa mise en liberté pendant l’instance d’appel;

[7] ORDONNE que l’appel procède ainsi : (

a) l’appelant devra notifier à l’intimée et déposer à la Cour son mémoire d’appel accompagné de tous les documents pertinents le ou avant le 16 avril 2021, fondé sur le dossier partiel alors disponible; (

b) l’intimée devra notifier l’appelant et déposer à la Cour son mémoire d’appel et tous documents supplémentaires qu’elle juge utiles le ou avant le 28 mai 2021, fondé sur le dossier partiel alors disponible; (

c) les 15 volumes de transcriptions des procédures et de l’interprétation des procédures déposés par l’appelant le 2 novembre 2020 dans le contexte de sa demande pour mise en liberté n’auront pas à être reproduits dans les mémoires respectifs des parties; ces transcriptions seront traitées comme avoir été déposées aux fins de l’appel au fond et les parties pourront y référer dans leurs arguments respectifs; (

d) toutes transcriptions additionnelles qui auront été rendues disponibles à l’appelant seront déposées avec le mémoire d’appel de ce dernier; (

e) l’intimée pourra déposer avec son mémoire d’appel toutes transcriptions additionnelles qu’elle estime nécessaires aux fins de l’appel, dans la mesure où elle respecte l’échéancier pour le dépôt de son mémoire. [8] ORDONNE que l’appel soit entendu le vendredi 11 juin 2021, à 9 h 30, devant la formation de la Cour siégeant alors dans la salle Lamer à Montréal, pour une audition n’excédant pas 180 minutes (90 minutes pour l’appelant et 90 minutes pour l’intimée). ALLAN R. HILTON, ROBERT M.

MAINVILLE, STÉPHANE SANSFAÇON, Me Véronique Robert ROY ROBERT, AVOCATS Pour l’appelant Me Richard Audet DIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALES Pour l’intimée Date de l’audition: 23 novembre 2020 MOTIFS DU JUGE MAINVILLE [9] Le 6 juin 2018, l’appelant fut déclaré coupable de trafic et d’importation d’une grande quantité de cocaïne et de méthamphétamine cristalline et d’avoir criminellement conspiré afin de trafiquer ces substances. [10] Le 10 janvier 2019, il s’est vu imposer une peine de 15 ans d’emprisonnement.

La détention préventive de 4 ans, 1 mois et 13 jours fut déduite de cette peine selon un ratio d’un jour et demi pour chaque jour de détention préventive, pour une peine effective totale d’emprisonnement de 8 ans, 9 mois et 25 jours. [11] Un appel du verdict sur des questions de droit fut déposé le 4 juillet 2018 et une demande pour permission d’appeler du verdict sur des questions de fait ou mixte de droit et de fait fut accordée le 18 octobre 2018. La peine ne fait pas l’objet d’un appel.

Bien que près de deux ans et demi se soient écoulés depuis que l’appel fut entrepris, les procédures d’appel n’avancent toujours pas. [12] Jusqu’à récemment, malgré les efforts continus de la procureure de l’appelant, très peu de transcriptions du procès et aucune des transcriptions de l’interprétation anglaise n’ont été rendues disponibles. [13] Le 6 août 2020, l’appelant a demandé sa mise en liberté en attente du résultat de l’appel, soulevant comme principal moyen l’impossibilité d’obtenir les transcriptions de son procès.

Cette demande fut entendue par le soussigné le 25 août 2020. [14] Le 27 août 2020, j’ai déterminé qu’il serait inapproprié de décider de la mise en liberté de l’appelant sans que les transcriptions du procès soient rendues disponibles aux parties et à la Cour. J’ai aussi rendu des ordonnances afin d’assurer la préparation et le dépôt

de ces transcriptions pour le 6 novembre 2020 au plus tard. Dans l’attente des transcriptions, j’ai déféré la demande pour mise en liberté à la formation de la Cour siégeant le 23 novembre 2020 : Dhingra c. R. , 2020 QCCA 1085 . [15] Le 23 novembre 2020, une formation de la Cour a tenu une audition sur la demande pour mise en liberté lors de laquelle la question de l’indisponibilité des transcriptions du procès fut à nouveau soulevée et au cours de laquelle l’appelant a exposé de multiples violations à ses droits linguistiques tout au long du procès.

L’appelant demande d’ajouter ces violations alléguées comme moyen additionnel d’appel. LA LANGUE DU PROCÈS [16] La langue maternelle de l’appelant est le Punjabi, mais il possède aussi une bonne connaissance de l’anglais. Selon ses prétentions, il s’identifie comme un anglophone. [17]

Malgré sa langue, les accusations sérieuses de trafic et d’importation de drogue portées contre lui le 28 novembre 2013 dans le dossier 500-01-098838-136 de la Cour du Québec ont toutes été rédigées en français. Peu après ces premières accusations, soit le 29 novembre 2013, l’appelant a obtenu sa liberté sous condition en attente du procès. [18] Le 13 décembre 2013, de nouvelles, mais similaires, accusations furent portées contre l’appelant dans le dossier 500-01-099546- 134 de la Cour du Québec. Toutes ces accusations étaient aussi rédigées en français.

Les accusations initiales dans le dossier 500-01- 098838-136 furent retirées et les conditions de mise en liberté de l’appelant furent versées dans le nouveau dossier. [19] Un an plus tard, en décembre 2014, l’appelant a aussi fait l’objet d’accusations dans un autre dossier portant le numéro 500-01- 115300-144 de la Cour du Québec et concernant d’autres infractions de trafic de drogue qui auraient été commises alors qu’il bénéficiait d’une liberté sous condition; il a aussi été accessoirement accusé dans le dossier 500-01-115010-149 de la Cour du Québec de bris de ses conditions de mise en liberté.

L’appelant a été détenu en regard de ces deux dossiers. Cela a mené à une enquête portant sur la révocation de sa mise en liberté dans le dossier principal 500-01-099546-134. [20] Le 6 décembre 2016, à la suite d’une audition tenue en français avec une interprétation simultanée pour l’appelant, le juge Gilles Cadieux de la Cour du Québec a révoqué la mise en liberté de l’appelant.

Cette décision était largement fondée sur les allégations d’infractions additionnelles liées à la drogue que l’appelant aurait commises alors qu’il était en liberté sous condition et qui ont mené aux nouvelles accusations dans les dossiers 500-01-115300-144 et 500-01-115010-149. Cependant, l’appelant ne fut jamais déclaré coupable de ces infractions.

En effet, le 8 décembre 2017, l’intimée déposait un nolle prosequi dans le dossier 500-01-115300-144, tandis que le 26 novembre 2018, les accusations dans le dossier 500-01-115010-149 portant sur les bris des conditions de mise en liberté furent retirées. [21] Peu après la révocation de sa mise en liberté, la question de la langue utilisée lors du procès fut soulevée lors d’une conférence de gestion tenue le 8 décembre 2016. Pendant cette conférence, le juge fut informé que tous les témoins de la poursuite témoigneraient en français.

L’échange suivant est alors survenu : THE COURT: Are we going to proceed with a simultaneous or consecutive translation? (…) Me DEBORA DE THOMASIS [procureure de la défense] Now to have had the problem in another file, I don’t have problems with simultaneously, meaning he would hear it, my only issue is we’ve tried it in another file where it was registered on an independent band, unfortunately, half of it is inaudible on that file and it’s at the Court of Appeal right now.

So that’s a bit of an issue, I don’t know if there is a way that we could make sure that it’s registering properly, or if we have a… je vous le dis, because then it’s a major problem because on linguistic rights it’s… I don’t want a new trial because of technicalities this way, we understand each other. (Transcription de l’audition tenue le 8 décembre 2016, p. 68, lignes 6-24) (…) THE COURT: … we have the box for the interpreter. So considering that we are going to use Room 5.12, are we going to proceed with a simultaneous or a consecutive translation?

Me DEBORA DE THOMASIS: Simultaneously as long as it’s properly registered. We’ll do some spot checks if you don’t mind. THE COURT: Well, I cannot guarantee anything. (Transcription de l’audition tenue le 8 décembre 2016, p. 72, ligne 18, à p. 73, ligne 1) (…)

THE COURT: So we agree with a simultaneous translation? Me DEBORA DE THOMASIS: Yes, we do. THE COURT: So, madame la greffière, we will need a French-English translator for all the witnesses and the Defence agrees to proceed with a simultaneous translation as long as we proceed in Room 5.12. (…) (Transcription de l’audition tenue le 8 décembre 2016, p. 73, lignes 17-25) [22] Il semble donc que le procès lui-même devait être tenu en anglais avec une interprétation simultanée des témoignages des témoins s’exprimant en français. [23] De fait, une requête de type O’Connor fut plaidée en anglais le 10 février 2017.

Toutefois, le procureur du ministère public a néanmoins insisté pour plaider en français, requérant ainsi une interprétation de ses propos. Cela a mené au commentaire suivant de la procureure représentant alors l’appelant : Me DEBORA DE THOMASIS So just for the benefit of the client and I’m not waiving his constitutional rights to be… to have everything said in English, but basically… (Transcription de l’audition tenue le 10 février 2017, p. 12, lignes 18-21) [24] L’interprétation des propos du ministère public a été transmise à l’appelant par chuchotements.

La transcription contient la note suivante à cet égard : Note: Translation was whispered to the defendant and thus was inaudible for transcription purposes – MJL, o.c.r. (Transcription de l’audition du 10 février 2017, 2017, p. 21, lignes 1 to 3) [25] À l’audition subséquente du 22 mars 2017 portant sur la requête du type O’Connor , le tribunal a insisté, afin de sauver du temps, pour que les débats soient menés en français avec une interprétation simultanée pour l’appelant : LA COUR: Okay. Bon, est-ce que l’enregistrement est parti? LA GREFFIÈRE : Oui, l’enregistrement, il est parti.

LA COUR : Bon, alors des deux côtés; l’enregistrement de la cour aussi. Bon, parfait. Alors monsieur Dhingra, nous avons requis le… la traduction des débats est enregistrée. De sorte que ça permet de faire l’interprétation, la traduction en simultanée ce qui sauve beaucoup de temps et ce qui vous donne quand même la latitude d’avoir les débats en anglais si vous souhaitez avoir la transcription. (Transcription de l’audition tenue le 22 mars 2017, p. 29, ligne 17 à p. 30, ligne 3) [26] De plus, puisque l’équipement pour procéder à l’interprétation simultanée et pour l’enregistrer semblait défectueux, une

partie de l’interprétation à de nouveau été transmise à l’appelant par chuchotements : Transcription de l’audition tenue le 22 mars 2017, p. 32, ligne 16 à p. 38, ligne 3; p. 47, ligne 18 à p. 49, ligne 2; p. 63, ligne 6 à p. 65, ligne 7. [27] Cette façon de procéder a mené à des problèmes d’interprétation et des difficultés pour assurer une transcription valide, tel que le note le sténographe officiel : THIS TRANSCRIPTION IS FROM THE VOICE OF THE SIMULTANEOUS INTERPRETER ONLY – IDENTIFICATION OF INTERVENANTS IS TO THE BEST OF MY ABILITY WHEN POSSIBLE – mjl: NOTES: 1 – THIS INTERPRETER IS WHISPERING THE TRANSLATION CAUSING MORE INAUDIBLES. 2 – EXCEPT FOR REFERENCE TO JURISPRUDENCE, WORDS IN ITALICS ARE A “WRONG” TRANSLATION BUT VERBATIM. 3 – BECAUSE OF CONTINUOUS “SIMULTANEOUS” TRANSLATION IT IS IMPOSSIBLE TO DECIPHER WHETHER TRANSLATION IS FROM CITATIONS OR NOT.

MJL (Transcription de l’interprétation anglaise de l’audition tenue le 22 mars, 2017, p. 2, lignes 1 to 10) (…)

Transcribed under reserve of isolated simultaneous translation audio track hence overlapping voice of speaker.

MJL (Transcription de l’interprétation anglaise de l’audition tenue le 22 mars 2017, avis sur chaque page de la transcription) [Soulignement, caractères majuscules et italiques dans l’original] [28] Il semble bien qu’il s’agit là d’un problème récurrent, des avis et commentaires similaires étant faits de temps à autre par les sténographes qui ont subséquemment transcrit les procédures, plus particulièrement en regard des auditions tenues le 12 septembre 2017 (Transcription de l’interprétation anglaise de l’audition tenue le 12 septembre 2017, p. 2, lignes 1 to 10) et du 29 novembre 2017 (Transcription de l’interprétation anglaise de l’audition tenue le 29 novembre 2017, intitulé de chaque page). [29] De fait, le procès fut tenu presque exclusivement en français, avec une interprétation simultanée pour l’appelant, quelquefois au moyen de chuchotements.

Le procureur du ministère public et la juge se sont exprimés principalement en français tout

[…]