2023 QCCQ 6496, 2023 QCCQ 6496

Smith c. R. 2023 QCCQ 6496 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal and Penal Division No: 500-01-231373-223 DATE: September 29, 2023 ______________________________________________________________________ BEFORE THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Ian SMITH and Edwin O’NEILL Applicants - Accused v. HIS MAJESTY THE KING Respondent -Prosecutor ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR A STAY OF PROCEEDINGS PURSUANT to

section 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ [ 1 ] Mr. Ian Smith and Mr. Edwin O’Neill were charged in relation to a series of firearm and drug offences on March 31, 2022. [ 2 ] They have elected to be tried by a judge of the provincial Court. [ 3 ] Their trial is scheduled to take place on February 21, 22 and 23, 2024, that is 694 days or 22 months and 24 days after the laying of the charges [1] . [ 4 ] Given that this delay exceeds the ceiling established in R . v Jordan [2] for trials held before the provincial Court, Applicants argue that their right to be tried within a reasonable time protected by

section 11b) of the Canadian Charter of Rights and Freedoms has been violated and seek a stay of proceedings. OVERVIEW OF THE LAW [ 5 ] Participants in the criminal justice system are by now familiar with the framework set out by the Supreme Court of Canada in R . v. Jordan [3] . As such, the Court will provide a brief

summary of only those guidelines which are relevant to the case at hand. [ 6 ] In order to ensure that the right of the accused to be tried within a reasonable time is respected, the Supreme Court held that the delay between the laying of charges and the anticipated end of trial should not exceed 18 months [4] for cases being tried before the provincial Court, and 30 months for cases tried following a preliminary inquiry. “Defence delay” that is, delay attributable to or waived by the defence does not count towards these presumptive ceilings. [ 7 ] After subtracting defence delay, if the “net delay” remains above these presumptive ceilings, the delay is presumed to be unreasonable and the burden shifts to the Crown to rebut the presumption on the basis of exceptional circumstances [5] . [ 8 ] The Jordan framework was created with a view to replacing the approach set out in Morin [6] , which had become unpredictable, confusing, and complex.

The goal of the Supreme Court in Jordan was to eradicate the culture of delay and complacency towards timely trials which had set in, and to encourage all participants in the criminal justice system to cooperate in achieving reasonably prompt justice. [ 9 ] Jordan also underscored that unreasonable delay denies justice not only to the accused, but to victims, their families, and to the public as a whole. Indeed, timely trials are important to maintaining overall public confidence in the administration of justice.

OVERVIEW OF THE PROCEEDINGS AND RELEVANT DATES Phase 1 - The arraignment and pro forma bail hearing: March 31 – Sept 29, 2022

[ 10 ] The information setting out the charges against the Applicants was sworn on March 31, 2022. On that same day, Applicant Smith appeared detained and scheduled a pro forma bail hearing for April 4. [ 11 ] On April 4, May 6, May 20, June 10, July 6, July 11, July 29, August 19 and September 28, the file appeared on the docket at the pro forma bail hearing stage.

Note that in the interim, on May 30, 2022, Applicant O’Neill appeared pursuant to a promise to appear signed at the time of his arrest, and all court dates subsequent to this appearance applied to both Applicants, who are coaccused in one file. [ 12 ] Much of the evidence forming the basis of the charges was obtained pursuant to the execution of warrants authorizing the search of a residence and a car.

The reason why the matter remained at the pro forma bail hearing stage on so many occasions was because Applicant Smith sought access to these warrants, as well as the informations sworn in order to obtain them (“the ITOs”) prior to him taking a position as to whether he would be seeking judicial interim release. [ 13 ] To that end, on April 1, 2022, counsel for Applicant Smith wrote to Me Jean-Francois Roy, who is acting for Respondent in this matter, requesting a copy of the warrants and the ITOs (as well as of the taped statements of his client’s interrogation) [7] .

In the same correspondence, Applicant Smith asked Respondent to indicate whether he would be presenting a Motion to unseal the warrants in the event that they were sealed [8] . [ 14 ] On May 4, 2022, in view of the upcoming court date on May 6, Applicant Smith wrote to Respondent again and inquired as to whether or not he intended to present a Motion to unseal the warrants [9] . On May 6, Respondent advised Applicant Smith that he was in trial at a different courthouse and would present the Motion upon his return in June [10] .

Applicants agreed to postpone the case for an additional 2 weeks, until May 20 [11] . [ 15 ] On June 10, 2022, Applicant Smith wrote to Respondent in order to verify his availability to proceed with the Motion to unseal the warrants. Respondent indicated that he had contacted the investigator to verify his availability but that he had not yet responded [12] .

Applicant Smith insisted on the importance of receiving the unsealed warrants and ITOs in order to decide whether or not to seek bail. [ 16 ] On June 29, 2002, Applicant Smith inquired again about the unsealing of the warrants and asked whether the Motion would be produced before the subsequent court date scheduled for July 6, 2022 [13] . [ 17 ] On July 5, 2022, Applicant Smith wrote to Respondent in order to advise him that he would produce a Motion to unseal the warrants himself and requested Respondent’s availability as well as that of the investigator.

In reply, Respondent reiterated that he would present the Motion, but needed to verify the availability of the investigator. Respondent also indicated that he needed to obtain a court date from the coordinating judge [14] . [ 18 ] On July 6, 2022, the file was remanded to July 11, 2022. On July 11, Respondent advised Applicant Smith that the Motion to unseal the warrants would be presented on July 29, 2022. [ 19 ] On July 29, 2022, the warrants were unsealed. Copies of the warrants and ITOs were received by Applicants on August 2, 2022.

When Applicants returned to court on August 19, they adjourned the file to September 28, 2022, in order to enable them to continue their analysis of the warrants. On September 28, 2022, Applicant Smith waived his bail hearing and the file was scheduled pro forma for November 3 to give the parties the opportunity to have discussions [15] .

Phase 2 – Pro forma dates: November 3, 2022 – February 23, 2023 [ 20 ] On November 3, 2022, the file was postponed to December 8, with the specification that this was being done “at the request of the defence”. [ 21 ] On December 8, 2022, Applicants again asked to postpone the file.

The matter was postponed to January 23, 2023. [ 22 ] On January 17, 2023, Applicants sent an email to Respondent requesting his availability to meet prior to the next court date which was scheduled for January 23. [ 23 ] On January 23, 2023, it was agreed that one last pro forma date would be set before scheduling hearing dates. [ 24 ] On February 6, 2023, all of the requested supplemental disclosure was provided except for the ballistic reports. [ 25 ] On February 19, 2023, Applicants sent Respondent a Motion for disclosure (a “ Stinchcombe ” motion) in relation to the ballistic reports, as well as a Motion for the exclusion of evidence.

They also solicited a meeting with Respondent prior to the upcoming court date to do an informal case management. [ 26 ] On February 23, 2023, Applicants elected to stand trial before the provincial Court. A 3-day trial was scheduled for May 21, 22 and 23, 2024.

In addition, a Motion for permission to cross-examine the affiant was scheduled for April 19, 2024, while May 1, 2024, was reserved for the presentation of a Motion for the exclusion of evidence [16] . [ 27 ] Also on February 23, Applicants advised the presiding judge as well as the office of the coordinating judge that there was a delay problem given the proposed trial dates. However, Applicants were informed that there were no earlier dates available. [ 28 ] July 13, 2023, was therefore set aside for the presentation of a Motion for a stay of proceedings based on unreasonable delay (a “ Jordan ” motion”).

Phase 3 – the Jordan motion and related communications: July 13 - September 14, 2023 [ 29 ] The Jordan motion did not proceed as planned on July 13 because Applicant Smith was not brought from detention, nor on the subsequent scheduled date which was July 20, because of a personal emergency of the attorney for Respondent. As such the Motion was

ultimately pleaded on September 14 before this Court. [ 30 ] However, prior to the hearing of this Motion, court dates opened up making it possible to advance the dates for the presentation of the pretrial motions as well as the trial. To that end, on August 4, 2023, Respondent wrote to Applicants and offered to advance the trial to the week of September 11, October 10, 16 or 30, or November 6 [17] . Applicants replied to this email on August 18, soliciting either a phone or in-person meeting [18] . Respondent was on holiday on August 18 and replied when he returned on August 28 [19] .

A number of attempts to connect were made by both parties, leading them to finally speak on September 8, 2023. Both describe that discussion as unfruitful. [ 31 ] On the morning of September 14, the date when the Motion was pleaded before this Court, Respondent again advised Applicants of the possibility of advancing the hearing dates, offering dates in December, January, February and April. Ultimately, it was agreed that the pre-trial motions would be pleaded on December 8 and 28, 2023, and that the trial would be advanced to February 21, 22 and 23, 2024.

Counsel for Applicant Smith advised this Court that he is shortening his paternity leave in order to make himself available for the trial in February. THE POSITION OF THE PARTIES Applicants [ 32 ] Applicants insist that they did not explicitly or implicitly waive any of the delay between March 31, 2022, and February 23, 2024, and that no part of such delay can be attributed to them. [ 33 ] The net delay is thus identical to the total delay, which is 694 days or 22 months and 24 days [20] . This delay surpasses the 18- month ceiling for trials before the provincial Court and is presumptively unreasonable.

It follows that a stay of proceedings must be pronounced [21] . Respondent [ 34 ] Respondent, on the other hand, argues that the period between August 19, 2022, and February 23, 2023, is attributable to what he describes as “defence action” in the “Table of Delays” produced in response to Applicants’ motion [22] . This represents a total of 189 days, or 6 months and 5 days. If the entirety of this delay is attributed to the defence, the net delay would be 16 months and 18 days, or 505 days, which is under the 18-month (547 days) ceiling established in Jordan [23] .

ANALYSIS [ 35 ] The result of this Motion will depend entirely on what, if any delay, should be attributed to the defence. [ 36 ] In Jordan , the Supreme Court emphasized that the defence should not be entitled to benefit from its own delay-causing conduct [24] . However, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. As such, defence applications and requests that are not frivolous will generally not count against the defence [25] . [ 37 ] Defence delay has two components. The first are periods of delay waived either explicitly or implicitly [26] .

In either case, the waiver must be informed, clear and unequivocal [27] . [ 38 ] The second is delay caused solely by the conduct of the defence.

In Cody , the Supreme Court made clear that this is delay which (1) is solely or directly caused by the accused person; and (2) flows from defence action that is illegitimate insomuch as it is not taken to respond to the charges [28] . [ 39 ] In Cody , the Supreme Court provided additional guidance on how judges should approach the determination as to whether defence action is illegitimate: [31] The determination of whether defence conduct is legitimate is "by no means an exact science" and is something that "first instance judges are uniquely positioned to gauge".

It is highly discretionary, and appellate courts must show a correspondingly high level of deference thereto. While trial judges should take care to not second-guess steps taken by defence for the purposes of responding to the charges, they must not be reticent about finding defence action to be illegitimate where it is appropriate to do so. [32]. Defence conduct encompasses both substance and procedure - the decision to take a step, as well as the manner in which it is conducted, may attract scrutiny.

To determine whether defence action is legitimately taken to respond to the charges, the circumstances surrounding the action or conduct may therefore be considered. The overall number, strength, importance, proximity to the Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11 (

b) application if it is designed to delay or if it exhibits marked inefficiency or marked indifference toward delay. [ 40 ] In light of the foregoing, can any of the delay in this matter be qualified as “defence delay”? Phase 1 - The arraignment and pro forma bail hearing: March 31 – Sept 29, 2022 [ 41 ] To begin, the Court takes note of the agreement between the parties that the passage of time between the laying of the charges and August 19, 2022, should not be attributed to the Applicants.

Indeed, throughout this period, Applicants made sustained efforts to obtain the unsealed warrants and ITOs which were essential not only to their eventual trial strategy, but to Applicant Smith’s decision as to whether or not to seek judicial interim release. In the circumstances [29] , the Court accepts that this delay counts in the calculation of the Jordan ceiling. [ 42 ] As for the subsequent delay within this phase, Applicants finally received the sought-after disclosure on August 2, the essence of

which consisted in a 5 page ITO. However, when the file returned to the docket more than 2 weeks later, on August 19, they indicated that they needed additional time to review it and take a position, and therefore requested that the matter be postponed, still at the pro forma bail hearing stage, to September 28. Indeed, it was only on September 28, that Applicant Smith waived his bail hearing and the file moved into its next stage. [ 43 ] Applicants did not explicitly waive the delay incurred by their request to postpone the matter from August 19 to September 28.

However, can his request for an additional 5 weeks to review the warrant and the ITO be characterized as an implicit waiver? The Court does not believe so, given that even implicit waivers must be informed, clear and unequivocal. It is not every defence request for a postponement that constitutes an implicit waiver [30] . [ 44 ] The Court also does not characterize Applicants’ request to postpone the case from August 19 to September 28 as delay caused solely by the defence. There is nothing indicating that as of August 19, 2022, Respondent was ready to

schedule a trial. Nothing to this effect was stated in court. Furthermore, the Court is not prepared to characterize this defence request as illegitimate. The Court comes to this conclusion with a view to Applicants’ overall conduct in the matter and its diligence in attempting to move the matter forward from the date of the first appearance onwards. While it would seem that two weeks could have been sufficient for Applicants to review the ITO, the request for an additional delay, when viewed in the overall circumstances of this case, remains a legitimate action taken with a view to responding to the charges.

Furthermore, a global examination of the conduct of the defence is such that the postponement is not indicative of inefficiency or of an indifference towards the delays. Phase 2 – Pro forma dates: November 3, 2022 – February 23, 2023 September 28 – November 3, 2022 [ 45 ] On September 28, 2022, when Applicant Smith waived his bail hearing, his counsel [31] indicated that he had spoken to Me Roy (Counsel for the DPCP who was represented in Court by a colleague), that they had agreed to remand the case pro forma to November 3 and that Applicants’ presence would not be necessary on the next date.

Counsel for Applicants indicated that there would be discussions between the parties, without specifying the nature of those discussions. [ 46 ] In order to qualify the nature of the delay caused by the postponement from September 28 – November 3, the Court notes the following: there was no waiver, explicit or otherwise, of the delay caused by this postponement; Respondent did not indicate that it was ready proceed; the request for the November 3 date was presented as a joint request made following discussions between counsel.

In addition, Respondent consented to counsel for Applicants’ request that their clients’ presence not be required on the following date. The only reasonable explanation for this is that neither Applicants nor Respondent expected that any decision of importance requiring the presence of the accused would take place on November 3. [ 47 ] The Court is cognizant that in certain circumstances, prosecutorial consent to a postponement does not preclude a finding that the delay flowing from such postponement should nonetheless be attributed to the defence [32] .

As pointed out by the Québec Court of Appeal in Rice , “consent from the prosecution does nothing to change the nature of a request for adjournment. The delays arise from the adjournment, not from consent. What must be examined is the reason, the cause for the adjournment” [33] . [ 48 ] However, in the circumstances outlined above, Respondent’s consent to the postponement confirms its legitimacy as a delay necessary for the preparation of the case [34] .

November 3 – December 8 , 2022 [35] [ 49 ] On November 3, Applicants again requested that the matter be postponed, stating that this was a complicated matter and that the parties needed to meet “ before scheduling ” [36] in order to discuss how the file should be managed [37] . Counsel for Applicants specified that the request for a postponement was being made “ by the defence ” [38] . [ 50 ] While a defence request for a postponement does not always result in the delay being attributed to the defence, in this situation, it should be.

Indeed, the Court is convinced that, on this particular date, the affirmation that the postponement was made “ by the defence ” was indicative of an implicit yet clear, informed and unequivocal waiver of the delay. In coming to this conclusion, the Court also considers that when requesting the postponement, counsel for Applicants initially asked that the presence of their clients again not be required on the next court date [39] . The Court views this as another indication that the defence was not preoccupied by the delay generated by this postponement and was in fact prepared to assume it.

December 8, 2022 – January 23, 2023 [ 51 ] On December 8, counsel for Applicants advised the Court that he had spoken with Me Roy and that they had agreed to postpone the case to January 23 in order to enable them to speak with a view to advancing the file. He also referred to outstanding disclosure [40] . [ 52 ] The Prosecutor in the courtroom read a note from Me Roy which presented things somewhat differently.

The note indicated that “the defence wishes to postpone the matter” in order to enable it to speak with him before scheduling a trial [41] . [ 53 ] Applicants clearly considered this to have been a joint request for a postponement, while Respondent viewed it as a defence request. The ambiguity of the situation is such that the Court cannot conclude there to have been an implicit waiver of this period of delay by the defence. [ 54 ] Furthermore, unlike the previous period of delay, the Court does not conclude that the delay should be attributed to the defence.

In fact, the postponement appears to have been necessary to respond to the charges and cannot be characterized as illegitimate.

[ 55 ] The Court comes to this conclusion based on a number of factors, including the existence of outstanding disclosure [42] . It is true that in the Jordan era, it is illegitimate for the defence to insist on having “every piece of paper” comprising the disclosure in its possession prior to scheduling a trial date. However , this is not the stance that was taken by Applicants in the case at hand. At least, some of the outstanding items were relevant to trial strategy and the presentation of a series of pretrial Charter motions.

The Court also notes that Respondent did not suggest that trial dates should be scheduled, despite the disclosure request, to avoid the undue passage of time. [ 56 ] Furthermore, it was not unreasonable for Applicants to have desired a meeting with counsel for Respondent prior to scheduling dates for the presentation of the motions and trial. In fact, this is a practice to be encouraged, because it will generally lead to trial efficiency and to a streamlining of the delays. [ 57 ] Clearly, discussions between the parties should have taken place prior to the December and even November court dates.

To that end, the Court underscores that while the defence must certainly collaborate and assist in shortening pre-trial delay, the constitutional obligation to ensure that an accused stands trial within a reasonable time is that of the state. The apparent failure of Respondent to take active steps to put the parties in a position to move the file forward was inconsistent with that obligation.

In the circumstances, the Court does not find this postponement to have been caused solely by the defense. [ 58 ] The Court opens a parenthesis here to address the position advanced by Respondent that from his perspective, the behaviour of Applicants throughout this phase sent the signal that “they were on the slow track” and that delay was not an issue. [ 59 ] The Court does not doubt the sincerity of Respondent’s perception. However, just “assuming” that delay would not be an issue is inconsistent with the state’s obligations pursuant to

section 11b) . The Court was presented with no evidence indicating that Respondent actually inquired as to Applicants’ position regarding delay. More importantly, Respondent never took active steps to accelerate the proceedings.

For example, it was never specified in open court whether the state was ready to proceed; it never insisted that Applicants elect as to their mode of trial; and it never sought a meeting with Applicants after hearing representations to the effect that Applicants wished to meet with him. [ 60 ] The behaviour of Applicants in the case at hand bears no resemblance to that of the defence in Lapointe [43] . For the most part, Applicants in the present case moved the case forward with diligence, particularly in the first pro forma bail hearing phase.

Similarly, in the latter part of the second phase, Applicants communicated as required with Respondent, and even produced their pretrial Motions well before the Rules of Practice would require. When the trial dates were scheduled, Applicants immediately indicated that the delays were problematic. [ 61 ] While not perfect, a global or qualitative [44] evaluation of Applicants’ behaviour does not reveal a wait-and-see approach or an indifference with respect to pretrial delay.

Unlike the situation in Lapointe , nothing in Applicants’ conduct entitled the Respondent to simply “assume” that Applicants planned on requesting a preliminary inquiry and that a 30-month delay would therefore be applicable. January 23, 2023 – February 23, 2023 [ 62 ] On January 23, 2023, the parties indicated that they had had discussions about the motions which would be presented by Applicants and that although they did not need to be produced before scheduling hearing dates, the parties needed a bit more time in order to be in a position to quantify the time which each one would require.

Applicants also specified that they had emailed a request for supplemental disclosure on January 19, 2023 [45] . It was agreed that one last pro forma date would be set before scheduling hearing dates [46] . [ 63 ] This was clearly a joint request for a final pro forma date, and the delay cannot be attributed to the defence. February 23, 2023 [ 64 ] On February 23, Applicants elected to stand trial before the provincial Court.

Trial dates as well as dates for the hearing of pretrial motions were scheduled. [ 65 ] Applicants advised all relevant parties of the existence of a delay issue, and July 13 was set for the presentation of a Jordan motion. Phase 3 – the Jordan motion and related communications: July 13-September 14, 2023 [ 66 ] The parties agree that any delay subsequent to February 23, 2023, and the scheduling of hearing dates falls within the Jordan ceiling.

This is clearly the case. [ 67 ] The Court does, however, wish to comment briefly on the communications between the parties which began in August with a view to advancing the pretrial motion and trial dates. [ 68 ] As outlined above [47] , on August 4, 2023, Respondent advised Applicants that earlier trial dates had become available. Applicants only responded to this email on August 18. When this Court questioned Applicants as to why they waited 2 weeks before responding, Applicants did not provide a compelling answer.

Applicants’ failure to reply to the offer of earlier dates expeditiously seems inconsistent with their desire to proceed as quickly as possible. [ 69 ] That being said, the Court is not convinced that an earlier response would have changed anything. Understandably, by the time new dates were offered at the beginning of August, counsel for Applicants had busy fall schedules.

The jurisprudence is clear that once trial dates are scheduled it is the responsibility of the defence to remain available on those dates, and while it can certainly consent to move up dates when possible, its inability to do so will not be held against it [48] . The Court also notes that the parties were ultimately able to advance the trial dates and that in order to do so, counsel for Applicants accepted dates that fall within his paternity leave.

CONCLUSION [ 70 ] The only delay which needs to be subtracted from the gross delay of 694 days as defence delay is the 36-day period between November 3 and December 8, 2022. This brings the relevant delay down to 658 days, or 21 months and 19 days, which is unreasonable in that it is above the applicable 18-month Jordan ceiling. [ 71 ] Respondent conceded that there are no exceptional circumstances in this matter and did not make observations seeking to rebut this presumption of unreasonableness.

The Court agrees that there are no exceptional circumstances in this case: there are no discrete events which could justify the delay, nor is this a particularly complex case. [ 72 ] The Court wishes to make one additional comment: as noted above, Respondent’s position is that the 189 days between August 19, 2022, and February 23, 2023, constitutes defence delay. The Court declined to qualify that entire timeframe as such for reasons explained above. [ 73 ] However, the Court recognizes that it was during that phase that the pace of the proceedings seemed to slow down.

That being said, this relaxed pace can be attributed as much to the state as to Applicants. [ 74 ] The Court considered attributing equal responsibility for the 189 days to Applicants and Respondent [49] . This would have led to a net delay of 604 [50] days, which is still unreasonable in that it is 57 days beyond the 18-month Jordan ceiling. FOR THESE REASONS, THE COURT : GRANTS the Application; ORDERS a stay of the proceedings against Mr. Ian Smith and Mr. Edwin O’Neill. __________________________________ SUZANNE COSTOM, J.C.Q.

Me Hovsep Dadaghlian Counsel for the Applicant-Accused Ian Smith Me Christopher Lerhe-Mediati Counsel for the Applicant-Accused Edwin O’Neill Me Jean-François Roy Counsel for the Respondent-(Prosecution) Date of hearing September 14, 2023