2017 QCCQ 5861, 2017 QCCQ 5861

Namazzade c. R. 2017 QCCQ 5861 JCO 051 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal Division No.: 500-01-097004-136 DATE: June 2, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Davood NAMAZZADE Petitioner-Accused v. Her Majesty the Queen Respondent-Prosecutor ______________________________________________________________________ JUDGMENT on a Motion for a Stay of Proceedings pursuant to

Article 11

b) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ INTRODUCTION [ 1 ] Petitioner is charged with production of marijuana and possession of marijuana for the purpose of trafficking, contrary to the Controlled Drugs and Substances Act . [ 2 ] The information was sworn on November 12, 2013. The end of the trial is forecast for November 16, 2017. Petitioner seeks a stay of proceedings on the basis of a violation of his right to be tried within a reasonable delay, protected by

section 11

b) of the Canadian Charter of Rights and Freedoms . THE NEW FRAMEWORK FOR EVALUATING PRETRIAL DELAY - R . v. Jordan [1] [ 3 ] Jordan instructs us that the first step in evaluating whether an accused’s 11

b) rights have been violated is to calculate the total delay between the laying of the charges and the real or anticipated conclusion of the trial [2] . [ 4 ] Next, any delay waived by the defence [3] , or caused solely by the conduct of the defence [4] , is to be subtracted from the total delay. [ 5 ] The central feature of the new framework is a ceiling beyond which delay is presumptively unreasonable.

In the case at hand, that is, a case going to trial in the provincial court after a preliminary inquiry, the presumptive ceiling is set at 30 months [5] . [ 6 ] If the total delay from the laying of the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable . The burden then shifts to the Prosecution to demonstrate that the delay is reasonable in light of exceptional circumstances. There are two main categories of exceptional circumstances: discrete events and particularly complex cases [6] .

[ 7 ] For cases that were already in the system before the Supreme Court released its reasons in Jordan , there is a third exceptional circumstance: the “transitional exceptional circumstance” [7] . OVERVIEW OF PROCEEDINGS [ 8 ] Before applying the Jordan framework, it will be helpful to provide an overview of the proceedings in this case:

a) November 12, 2013: The information is sworn.

b) February 4, 2014: Petitioner’s appearance date. He fails to appear and a warrant for his arrest is issued (with an endorsement authorizing his release upon arrest).

c) February 14, 2014: Petitioner appears. The warrant is cancelled. Initial disclosure is provided. The case is postponed pro forma until April 10, 2014.

d) March 4, 2014: Petitioner’s attorney sends a letter to the DPCP requesting supplemental disclosure. ( R-1 )

e) March 13, 2014: The DPCP replies to Petitioner’s request, indicating that some of the requested items are now available. ( R-2 )

f) April 9, 2014: Petitioner’s attorney sends another disclosure request to the DPCP, encompassing the outstanding portion of the first letter sent on March 4, as well as a number of other items. ( R-3 )

g) April 10, 2014: pro forma hearing. The case is postponed pro forma to June 10, 2014 to enable the DPCP to reply to Petitioner’s disclosure requests.

h) May 7 and 9, 2014: The DPCP provides answers to all of the outstanding disclosure requests (in some cases by providing supplemental disclosure and in others by confirming that the items requested by Petitioner do not exist). ( R-4 and R-5 )

i) June 10, 2014: pro forma hearing. Petitioner requests a preliminary inquiry. McNeil disclosure is provided. A case management conference is scheduled for August 22, 2014.

j) August 22, 2014: The parties appear for the case management conference, however supplemental disclosure is provided that same day (following a phone call made the previous day to Petitioner by the new lawyer handling the file for the DPCP). As such, the case management conference is postponed to October 14, 2014 to enable Petitioner to review the new items that have just been disclosed.

k) October 14, 2014: Case management conference. The preliminary inquiry is scheduled for September 21, 2015 for one day. The case management judge also requests that the parties return before the court on December 17, 2014 to confirm the availability of their witnesses.

l) December 17, 2014: The parties return before the case management judge and confirm the availability of their witnesses for September 21, 2015.

m) September 21, 2015: preliminary inquiry. Both parties are ready and all witnesses are present. The case cannot proceed because the docket is overloaded. The one-day preliminary inquiry is postponed to March 17, 2016.

n) March 17, 2016: preliminary inquiry. Petitioner is ordered to stand trial. Petitioner elects to be tried by a judge of the provincial court. A case management conference is scheduled for June 8, 2016.

o) June 8, 2016: case management conference. The trial is scheduled for April 3-6, 2018. The date for the hearing of Petitioner’s Motion for Exclusion of Evidence is scheduled for February 6, 2017. The case is postponed to September 19, 2016, at which time Petitioner is to deposit such Motion . During a discussion about the anticipated length of the trial, and the impact it will have on delay, Petitioner states that it is not his intention (he uses the word “target”) to make delay an issue [8] . [J uly 8, 2016 - The Supreme Court releases its decision in Jordan .]

p) September 19, 2016: The parties appear before the case management judge. Petitioner files his Motion for Exclusion of Evidence , and indicates that he will consider filing a Jordan motion if the Motion for Exclusion of Evidence is unsuccessful [9] .

q) February 6, 2017: The Motion for Exclusion of Evidence is heard.

r) March 2, 2017: the Motion for Exclusion of Evidence is dismissed. Petitioner confirms his intention to present a Jordan motion. The hearing of that motion is scheduled for April 25, 2017. Petitioner is given until March 25 to deposit his Motion . Respondent is given until April 7 to produce a table with her characterization of the various delays. The parties are encouraged to verify the possibility of advancing the trial dates.

s) April 10, 2017: The parties attend the office of the coordinating judge and advance the trial to November 13-16, 2017. APPLICATION OF THE NEW FRAMEWORK [ 9 ] The total time between the laying of the charges on November 12, 2013 and the anticipated end of Petitioner’s trial on November 16, 2017 is 4 years and 4 days, or approximately 48 months. [ 10 ] In his Motion, Petitioner states that only 10 days should be subtracted from this total delay, leaving a net delay of just shy of 48 months. ( R-6 ) [ 11 ] Respondent submits that the “stop point” should be July 13, 2017.

This is because when the parties attended the office of the coordinating judge on April 10, 2017 to advance the trial dates, July 10-13 was offered to them, but Petitioner was unavailable. Respondent thus attributes the delay from July 13 - November 16, 2017 to the defence, and calculates the net delay to be approximately 44 months. [ 12 ] The Court does not believe it is necessary to resolve this issue in order to rule on the Motion . That being said, in the particular circumstances of this case, the Court tends to disagree with the position being put forward by Respondent.

As pointed out in Thanabalansingham [10] , defence delay is delay caused solely by the conduct of the defence [11] . Generally, this means delay caused when the Court and the Crown are ready to proceed, but the defence is not [12] . [ 13 ] In this case, the July dates were only offered in April. It is therefore not surprising that Petitioner was unavailable, particularly in a transitional case such as this. Petitioner pleaded that if the offer to proceed in July had been made earlier, he would have been available.

In this regard, the delay between July 13 and November 16 cannot be characterized as solely caused by the defence. This portion of the delay, like the majority of the total delay in this matter, is a function of the notorious institutional delays which plagued the Montréal region until very recently, which made it impossible to offer the July dates on an earlier occasion. [ 14 ] In any event, both parties agree that the presumptive ceiling of 30 months has been passed, and that Respondent bears the

burden of proving that the delay is reasonable in light of exceptional circumstances. [ 15 ] Neither party has invoked any exceptional circumstances which would justify the delay. Similarly, nobody argues that this is a particularly complex case. [ 16 ] However, because Petitioner was charged before Jordan was released, this Court must determine whether the transitional exceptional circumstance applies. The Petitioner says “no” and the Respondent says “yes”. This is the only real issue. THE TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE [ 17 ] The transitional exceptional circumstance can apply in two situations.

The first is when “the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” [13] . Moreover, it may also justify an otherwise unreasonable delay “because the case is of moderate complexity in a jurisdiction with significant institutional delay problems” [14] . [ 18 ] The transitional exceptional circumstance is justified because it would not be fair “to strictly judge participants in the criminal justice system against standards of which they had no notice”.

Furthermore, the Supreme Court insisted that “the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov ” [15] . [ 19 ] In the case at hand, while the region of Montréal is certainly one of the jurisdictions confronted with significant institutional delay problems, neither party has argued that this is a moderately complex case.

The Court agrees. [ 20 ] The Court must therefore examine if the first prong of the transitional exceptional measure applies in that Respondent has met the burden of proving that the delay is justified based on “the parties’ reasonable reliance on the law as it previously existed”. [ 21 ] Prior to the release of Jordan , the framework used to evaluate the reasonableness of pretrial delay was that set out in the case of Morin [16] . This approach was summarized as follows by the Supreme Court: The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (

b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay.

Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court. [17] [ 22 ] In determining whether or not the transitional exceptional circumstance applies, the court must adopt a flexible and contextual approach [18] . Does the transitional exceptional circumstance apply? [ 23 ] The Court does not consider that it would be helpful to dissect the delays as was generally done in applying Morin .

A rapid overview of the proceedings reveals that the most significant portion of the net delay (be it 48 months as pleaded by Petitioner or 44 months as pleaded by Respondent), is comprised essentially of what was referred to as “institutional delay” pursuant to Morin . [ 24 ] If we add together just the periods from the scheduling of the preliminary inquiry to the first preliminary inquiry date (October 14, 2014 - September 21, 2015), from the first preliminary inquiry date to the second preliminary inquiry date (September 21, 2015 to March 17, 2016) and from the scheduling of the trial to the anticipated trial dates (June 8, 2016 to November 16, 2017), the delay is approximately 34½ months, which, in and of itself, greatly exceeds the guidelines set out in Morin [19] .

[ 25 ] But the analysis does not end there.

As pointed out in Palma [20] , the parameters outlined by the Supreme Court in Morin were always intended to be applied taking into account local conditions and changing circumstances [21] . [ 26 ] In fact, in the Montréal region, institutional delays like the one in this case were not particularly exceptional. [ 27 ] In determining whether or not the transitional exceptional measure applies in this matter, the Court must keep in mind the teachings of the Supreme Court to the effect that the transitional exceptional measure exists in order to ensure that an extraordinary number of charges are not stayed because of an “abrupt change in the law” [22] .

The Supreme Court held that “[s]uch swift and drastic consequences risk undermining the integrity of the administration of justice” [23] . It goes without saying that every case must therefore be judged on its own merits. [ 28 ] Petitioner pleaded that Respondent adopted a very “laissez-faire” attitude in this case, which exemplifies the culture of complacency that the Supreme Court of Canada sought to end by its ruling in Jordan . He pointed to the correspondence he needed to send to Respondent to obtain full disclosure.

Indeed, while he received initial disclosure when he appeared on February 14, 2014, he had to write to Petitioner in March and April 2014 [24] to request additional items. The totality of the requested disclosure was ultimately provided on May 9, 2014 [25] . [ 29 ] Furthermore, on August 22, 2014 when the parties appeared for their case management conference, additional supplemental disclosure was provided. The attorney acting for the DPCP explained to the Court that she had recently been assigned the file, and it was upon review that she realized that there were a few documents missing.

This required her to contact the detective in charge of the file, who provided her with said documents the day before the case management conference. She in turn provided them to the defence only that morning. This caused delay in that the case management conference was postponed to October 14, 2014 to enable Petitioner to review the new items that had just been disclosed. [ 30 ] Petitioner pleaded that his behaviour contrasted with that of Respondent in that he did everything he could to ensure that the case move along quickly.

In particular, he emphasized his diligence in sending disclosure requests shortly after the appearance [26] . The Court certainly acknowledges petitioner’s proactivity in this regard. The Court also finds that although it would have been preferable for all of the disclosure to have been provided on the date of the appearance, Respondent reacted rapidly each time a request was made [27] .

Similarly, when the new attorney acting for the DPCP identified elements of the file that were missing, she moved as quickly as she could to obtain them, and disclose them to Petitioner. [ 31 ] In the Jordan era, we may criticize the pace at which disclosure was made in this file, and expect that to the extent that such is possible, all disclosure be available at the first appearance. However, we must recall that this is a transitional case. The transitional exceptional measure was created by the Supreme Court in recognition of the fact that it would be unfair to apply the new standard retrospectively.

In transitional cases, the focus is on whether the delays were acceptable based on the parties’ reasonable reliance on the law as it previously existed. The Court does not consider that Respondent approached its disclosure obligations with a laissez-faire attitude in this file, particularly when its behaviour is examined through the transitional lens. [ 32 ] Another potentially problematic issue which emerges in examining the flow of this file is that the preliminary inquiry was unable to proceed on the first scheduled date because the docket was too congested.

This is despite the fact that the preliminary inquiry had been scheduled over 11 months earlier, and all the witnesses were present. The inquiry which was originally scheduled for September 21, 2015 thus proceeded only six months later on March 17, 2016, more than two years after Petitioner’s first appearance. [ 33 ] Given his submissions about the pace of the disclosure, as well as the long delay before actually being able to hold the preliminary inquiry, one would have expected Petitioner to be complaining about delays by the time the case management conference [28] took place on June 8, 2016.

However, this was not at all the case. In fact, in response to the judge’s comments to the effect that Petitioner’s request for consecutive translation would “necessarily add to the duration of the hearing” and “have an impact on the delay”, Petitioner replied as follows: That’s fair Your Honor. At this point we have not exposed the delays issue to the Court or the Crown and it is not in our target to expose the delay argument .

If such an argument were one day to come up, I would consider all of these requests done by the defence, and we will evaluate our position if there is a valid Charter argument to be argued on delay. But this is not our game plan . It’s more to attack the warrant [29] . [Emphasis added by the Court.]

[ 34 ] Furthermore, even after learning later during the case management conference that the trial would only take place from April 3- 6, 2018, Petitioner’s attorney did not make any comment about the delay, or in particular about the impact such delay was having on Petitioner. In some contexts, silence may be viewed as mere resignation to reality. But in the circumstances of this case, when combined with the above comment, the Court finds that Petitioner’s silence is an indication that he was satisfied with the pace at which the proceedings were progressing [30] .

Prejudice [ 35 ] One of the major changes introduced in Jordan is that from here on, “the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached” [31] . However, in its discussion of the transitional exceptional circumstance, the Supreme Court recognized that prejudice “often played a decisive role in whether delay was unreasonable under the previous framework”.

The Court went on to say that this factor “can therefore inform whether the parties’ reliance on the previous state of the law was reasonable” [32] . [ 36 ] Petitioner testified and insisted on the prejudice he suffered on account of the long delay in this matter. He referred to the stress and anxiety he has suffered since the beginning of the proceedings. In 2014, he worked at a sign company for six or seven months, but his boss said he was not doing his job properly, and he was fired.

Petitioner attributes his poor performance at work to the fact that he was distracted by the pressure of the court proceedings. [ 37 ] Since 2015, Petitioner has been supporting himself by doing deliveries. He has also had to take money out of his retirement savings, his credit card, and his line of credit. There is a lien on his house taken out by a private lender he borrowed money from. In addition, his 20-year-old son quit college so that he could get a job and help with the expenses.

The case has thus created financial pressures. [ 38 ] The Court acknowledges that the delay is creating some prejudice for Petitioner, in particular in relation to his right to security. As pointed out by the Supreme Court in Godin [33] , “[p]rejudice in this context is concerned with the three interests of the accused that s. 11

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence…” [34] . [ 39 ] The Court is also mindful of the pre- Jordan jurisprudence to the effect that in cases plagued by long delays, prejudice may be inferred. [ 40 ] However, it is important to distinguish between prejudice caused by delay in getting to trial, and prejudice caused by the charges themselves.

Indeed, in Petitioner’s case, it seems that the most significant part of the prejudice he invoked resulted from the charges. The Court observes that during his testimony he emphasized the anxiety he experienced in 2014 , which he believes led to his job loss. This anxiety could not have been caused by delay, as Petitioner’s first appearance was only in February 2014 and the proceedings had just begun. It was therefore a result of the charges.

Furthermore, despite the ongoing proceedings, and the prolongation of the delays, Petitioner has been able to maintain work as a delivery person since 2015. [ 41 ] The Court also notes that despite the emotional and financial pressures described by Petitioner, in June 2016 his attorney stated explicitly that it was not Petitioner’s intention to invoke “the delay argument”. The Court can thus only conclude that the delay in getting to trial was not creating significant prejudice for Petitioner [35] . [ 42 ] The Supreme Court released its reasons in Jordan on July 8, 2016.

On September 9, 2016, the parties appeared before the case management judge. At that time, for the very first time since the beginning of the proceedings, Petitioner alluded to the possibility of presenting a motion based on unreasonable pre-trial delay. His remarks on this point were less than conclusive and again, no mention whatsoever was made of the prejudice being suffered by petitioner on account of the delay [36] .

In fact, Petitioner preferred to “wait and see” what would happen with his Motion for Exclusion of evidence before deciding whether or not to present a motion invoking an unreasonable pretrial delay. As such, the present Motion was only deposited on March 24, 2017. [ 43 ] If Petitioner was really suffering prejudice based on the delay in getting to trial, one would have expected him to file his motion much earlier [37] . His inaction is inconsistent with his claims of prejudice [38] .

Respondent’s behaviour [ 44 ] In addition to his argument about Respondent’s “laissez-faire attitude” in relation to its disclosure obligations, which the Court has already dealt with [39] , Petitioner pleaded that on September 19, 2016, as soon as he mentioned the possibility of presenting a Jordan motion, Respondent should have been more proactive. He argued that as of September 19, 2016, Respondent should have made efforts to identify earlier trial dates.

Instead, it waited until Petitioner’s motion was filed [40] . [ 45 ] Respondent responded to Petitioner’s argument by explaining that there were simply not enough resources available in September 2016 to enable it to advance trial dates in every single case. While attempts were indeed made to move up some files, Respondent said quite candidly that “choices needed to be made”. [ 46 ] The Court accepts the position of Respondent, and once again, does not find its behaviour to be indicative of a “laissez-faire” attitude.

As stated in Jordan , in jurisdictions where there were notorious delays (such as in Montréal), “Crown counsel’s behaviour is constrained by systemic delay issues”. The Supreme Court also noted that “change takes time” and that “stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist [41] ”. [ 47 ] The Court understands why, when required to make choices, Petitioner’s file was not prioritized. Petitioner stated unequivocally in June 2016 that he was not planning on making delay an issue. In September, he stated that a Jordan motion might be deposited.

Respondent was entitled to rely on these assertions. [ 48 ] The Court also notes that very shortly after the Jordan motion was deposited, Respondent reached out to Petitioner in order that they meet and try to advance the court dates [42] . This possibility now existed given the appointment of many new judges to the Cour du Québec, Criminal and Penal Division, at the end of March 2017. In fact, the trial was advanced by almost five months. Seriousness of the charges [ 49 ] Finally, a brief note about the seriousness of the offence.

While pursuant to Jordan , this is no longer a factor to be considered [43] , this was a relevant factor in the Morin analysis where the Court referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”. Petitioner is facing two charges, the more serious of which is punishable by imprisonment for 14 years, and a mandatory minimum term of imprisonment for one year. These are amongst the most significant sentences in the Criminal Code and are an indication of the objective gravity of the offences.

This factor thus favours the continuation of the proceedings, in order that the charges be adjudicated on their merits. CONCLUSION [ 50 ] This is not a case where errors and missteps of the Prosecution caused significant delay [44] . The overwhelming majority of the delay was a result of longstanding, institutional delays in the region of Montréal. Since the Supreme Court released its reasons in Jordan , the Government of Québec has named new judges and has expressed a commitment to do what is necessary to eliminate the institutional delay problem [45] .

This has had a concrete result in this case, as the trial was advanced by almost five months. [ 51 ] The Court is convinced that the parties acted reasonably, in conformity with the law as it existed prior to Jordan . The Court is also convinced that were it not for the decision in Jordan , Petitioner would not have presented this Motion and argued that the delays in this case were unreasonable.

The Court points to the clear position taken by Petitioner in June 2016 as proof. [ 52 ] As stated by the Supreme Court, the Jordan ruling “should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one” [46] .

Despite the fact that the delay in this file is considerably higher than the ceiling established in Jordan , and is thus presumed to be unreasonable, the Court is convinced that the parties’ behaviour is justified based on their reasonable reliance on the law as it previously existed. [ 53 ] Respondent has therefore succeeded in convincing the Court that the transitional exceptional circumstance applies. FOR THESE REASONS, THE COURT DISMISSES the Motion for a Stay of Proceedings.

__________________________________ SUZANNE COSTOM, J.C.Q. Me Harout Haladjian Attorney for Petitioner-Accused Me François Allard and Me Dannie Leblanc Attorneys for Respondent-Prosecutor Date of hearing: April 25, 2017