2013 QCCQ 14683, 2013 QCCQ 14683

Unofficial English Translation JD 2976 Direction des poursuites criminelles et pénales c. Turcot 2013 QCCQ 14683 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ST-FRANÇOIS LOCALITY OF SHERBROOKE "Criminal and Penal Division" No.: 450-01-063748-102 DATE: November 29, 2013 ______________________________________________________________________ PRESIDED BY: THE HONOURABLE CLAIRE DESGENS J.C.Q. ______________________________________________________________________ DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS Prosecutor-respondent v.

JACKLIN TURCOT Accused-Petitioner ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] On February 4, 2010, Mr. Jacklin Turcot was arrested for impaired driving in Orford by police officers from Magog.

The information was signed on March 11, 2010, for appearance on March 30, which marks the starting point for the computing of the time periods in this file, which contains two counts. [ 2 ] More than forty-four months after being charged, the accused files a motion for a stay of proceedings due to unreasonable delay.

ISSUES [ 3 ] Since this motion is one of the many cases involving a C-2 constitutional challenge, the questions that arise are the following: • To whom should the delays suffered by the applicant in his case be attributed? • Should these delays be characterized as unreasonable in the specific circumstances of the case?

FACTS [ 4 ] The case involving the charge against Turcot proceeded in the context of the constitutional challenge that resulted in the Supreme Court decision in St-Onge Lamoureux . [1] [ 5 ] The context of this case, therefore, is exceptional, since the constitutional challenge rapidly grew to involve hundreds of accused throughout the province, creating a significant logistical challenge for the judges responsible for managing this monster and ensuring the integrity of the criminal process. [ 6 ] Coordinating judges have had to ensure that the rights of citizens being prosecuted were respected while assigning everyone their fair share of responsibility to properly and efficiently manage institutional resources, which are not unlimited.

The management of delays in these cases has also created significant challenges that have been ably faced by the Court of Quebec. [ 7 ] It is a matter of judicial notice that the cases [2] that gave rise to this Supreme Court decision brought about complex and costly proceedings.

Several other cases latched onto this test case to benefit from its positive effects. [ 8 ] In November of 2012, the Supreme Court found that the impugned legislation, which was enacted in 2008, was constitutional in part. [3] That decision sets out that the prosecution is now required to disclose the elements deemed necessary to establish that the

breathalyzer devices were properly maintained and functioning, leaving it up to trial judges to decide what must be disclosed. [ 9 ] In this specific context, however, we must not lose sight of the individual interests of each of the accused whose cases are now being heard.

For some, it was obviously to their advantage to wait for the decision on Bill C-2, but for others, the benefit of waiting before proceeding with their file was less clear. [ 10 ] As for Turcot, he argues that his interest in expediting proceedings was real and related to the impact that these prosecutions had on both his personal and his professional life. PROCEEDINGS [ 11 ] The arrest leading to the charges took place on February 4, 2010, and the information was signed by the justice of the peace on March 11, 2010. The accused appeared by way of his counsel on March 30 and obtained disclosure of the evidence.

His file was postponed pro forma to May 7, 2010. At this stage, the defence was already requesting a trial as soon as possible.

The file was then postponed to May 28, the date for scheduling lengthy trials. [ 12 ] In the meantime, in a letter dated May 17, 2010, counsel for the accused requested three documents as additional evidence: the personal notes of some of the police officers who carried out the arrest, the audio recording of the police radio on the night of the incident, as well as the related call logs and the certificates of compliance of the approved screening device used by the officers. [ 13 ] The file was postponed to September 7, 2010, to allow the prosecution to adopt a position in response to the requests for disclosure.

On that date, the Crown was still waiting for an answer from the police force regarding the availability of some of the officers' notes. The case was therefore postponed until October 26, when a date would be set. [ 14 ] In the meantime, the defence sent a second letter, this one dated September 14, 2010, in which it insisted on obtaining the same three documents as additional evidence. On September 24, Crown counsel responded, stating that two of the three documents requested – the audio recording and the certificates – would not be disclosed because they had been determined to be irrelevant.

He suggested that the defence request them from the trial judge. As for the police officers' notes, they could not be disclosed because they did not exist. [ 15 ] Given the position of the prosecution on disclosure, on October 6, 2010, counsel for the accused filed a notice to safeguard the accused's rights, alleging the constitutional invalidity of

section 258 of the Criminal Code , thus connecting themselves with the other cases challenging Bill C-2. On October 7, he filed a motion for the disclosure of the three documents he had been requesting since May of 2010. Subsequently, a series of dates were fixed, and this case, like many others, was postponed pro forma from October 26, 2010, to February 18, 2011, then to April 18, 2011, and then to July 11, 2011. On that date, the motion for disclosure of evidence was set to proceed on November 30, 2011.

Each time the motion appeared on the roll, the defence never waived its right to invoke the delays, save on one occasion. [ 16 ] On November 22, 2011, the motion for disclosure was amended to correct the name of the device at issue, and on November 30, the prosecution sought a postponement that was not contested by the defence, who had nevertheless declared itself ready to proceed. A re-amended motion was served, however, on December 9.

In a letter dated November 28, 2011, the defence had previously made it known to the judge managing all of the C-2 files that the accused was still ready to proceed, that the estimated duration of the hearing on this motion was one day, and that he waived no delay.

On that date, more than eighteen months had already passed without the prosecution providing the audio recordings and the call logs that the defence believed were relevant. [ 17 ] In a letter dated December 15, 2011, counsel for the accused requested a telephone conference with a Crown attorney and the case management judge to discuss the need to dissociate this case from all of the other C-2 cases. He insisted that the motion for disclosure should proceed promptly, arguing that this case was different from the others. He provided dates of availability and made his requests rather insistently.

Counsel for the defence was very clear that he wished to proceed, filing documentary evidence and making legal arguments. He reiterated each of the requests for disclosure. In response, the prosecution asked for time to take a position and the judge moved the date for a full day's hearing on the motion for disclosure from December 19, 2011, to April 27, 2012. [ 18 ] The motion did not proceed on April 27.

Turcot's file was then postponed to May 1, May 2, June 28, October 23, 2012, and then to April 3, 2013, still pro forma , with no waiver of delays. [ 19 ] It goes without saying that the reasons for postponing the case from one date to the next are clearly related to the constitutional challenge and the wait for the decision in Lamoureux St-Onge , which was finally rendered in November of 2012.

Subsequently, the postponements were related to the processing of the requests for disclosure of evidence incidental to the new guidelines for the C-2 files from the Director of Criminal and Penal Prosecutions (DCPP). [ 20 ] On March 5, 2013, the maintenance records that the accused had been requesting since May of 2010 in this case, notwithstanding the error in the identification of the device referred to in the motion for disclosure, were disclosed to counsel for the applicant.

As for the audio recording of the police radio and the call logs, they had not been disclosed at that point. [ 21 ] On March 28, 2013, the defence once again asked to be distinguished from the many other C-2 files and requested a date in the near future for the hearing on the motion for disclosure, principally so that a judge could rule on the appropriateness of the prosecution's disclosure of the audio recording of the police radio and, above all, its legal obligation to do so.

It is on record that the accused still wanted this evidence because he was convinced that, on the night of the arrest, the Magog police officers had made comments on the radio that were relevant to the exercise of his right to make full answer and defence. [ 22 ] On April 8, 2013, the prosecution finally re-evaluated its position on this motion for disclosure, providing the defence with the evidence that it had been requesting since May of 2010, and thereby acknowledging its relevance. The defence then discontinued its motion, which had become moot. [ 23 ] On April 16, 2013, the trial was set for June 10.

A motion for a stay of proceedings due to unreasonable delay was filed on June

5. A designated judge recused herself on the very morning of the trial on uncontested grounds, and the file was finally set for hearing before the undersigned on September 27, the date on which the present motion was heard and the decision thereon reserved until the day of this judgment. [ 24 ] At the hearing of his motion, Turcot testified that since the beginning of these proceedings, he has consistently informed his counsel of his intent to challenge the basis of the charges against him as quickly as possible.

That is why obtaining the audio recordings of the police radio on the evening of his arrest has been so critically important to him since 2010. He has always been convinced that this evidence is relevant and useful to establishing the unlawfulness of his arrest. [ 25 ] Even though he is a lawyer practicing in criminal law and is accustomed to these proceedings, he testified that he has experienced significant stress before every Court date. Over the past three years, his professional and personal life has been disrupted regularly, in a manner that he describes as significant.

His productivity at work and his career objectives were regularly affected by the length of time that passed before the evidence was disclosed and the duration of the proceedings before his trial.

Applicable Law [ 26 ] The constitutional right of an accused to be tried within a reasonable time is well defined by the higher courts. [4] [ 27 ] The Supreme Court decisions in Askov , [5] Morin , [6] Smith , [7] Conway , [8] and Godin [9] present an overview of the individual rights underlying this Charter protection: the rights to freedom, security, and a fair trial. [ 28 ] Recently, in Jean-Jacques , the Quebec Court of Appeal provided a good

summary of the state of the law, reiterating the broad principles: [ translation ] [5] The applicable principles are well known. In Morin , the Supreme Court assessed its own case law relating to subsection 11(

b) of the Charter , initially stated in Smith and Askov . Later, in Godin , it interpreted the principles set out in Morin , supra . When read together, these decisions reveal three consistent elements: the difficulty of assessing the prejudice, the importance to be assigned to the case as a whole in the required weighing exercise, and the need to reconcile the interests of the accused with those of society: [18] The legal framework for the appeal was set out by the Court in Morin , at pp. 786-89.

Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect . This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis.

In Morin , at 786–789, this Court established the legal framework applicable to this case . [10] (Emphasis added.) [ 29 ] The Court would also like to draw attention to the excellent work of the two attorneys who argued this motion, and it has taken into consideration all of the decisions submitted and argued by the two parties in their arguments.

ANALYSIS [ 30 ] First, the Court must assess the length of the delay and decide whether the period that has been running since the charge is of sufficient length to raise an issue as to its reasonableness. [11] [ 31 ] In this case, the delay of forty-four months certainly appears to be prima facie unreasonable and merits analysis. [ 32 ] The Court will therefore deepen its analysis by considering the other factors of assessment: - the waiver of certain time periods - the characterization of and reasons for the delay - the prejudice to the defendant. [12] The waiver of time periods [ 33 ] It falls to the prosecution to convince the Court that the accused has waived some of the time periods.

The accused must have understood and explicitly waived his or her rights. [13] If not, where an accused expressly requests a trial date in the near future and demands and insists that the matter move ahead, no time period is being waived. [14] [ 34 ] Although the accused took

part in a constitutional challenge, he never waived his right to invoke the delays if they became unreasonable. In this case, the transcripts of the various sessions in Court and the letters filed into evidence amply demonstrate that counsel for the accused made repeated requests to proceed expeditiously.

It is sufficient to read the letters of November 28 and December 15, 2011, sent to the judge managing the C-2 files, as well as the transcripts when the date was set for December 19, 2011. [ 35 ] The only time period that seems to have been waived is the three months between April 18 and July 11, 2011, when the local correspondent representing Mtre Carette on that date waived the right to invoke them. [ 36 ] On other occasions where certain postponements were inevitable and the dates were imposed by the Court, there was no clear waiver of rights. [15] The accused’s case here was dependant on the C-2 challenges, but he always expressed his wish not to become lost in the shuffle.

[ 37 ] It is true that it was the accused who sent a notice under

article 95 C.C.P. to challenge the constitutional validity of the statute, and of course he must accept the consequences of his choices. But he also did everything within his power to obtain the evidence that he believed to be essential to his defence, such as the audio recording and the call logs from the police department. He also did everything he could to move his case forward, regardless of the exceptional context of his case.

Certainly, the Court cannot fault him or infer a waiver of his other constitutional rights. [ 38 ] The rest of the evidence reveals no other waiver, either express or tacit, on the part of the accused of his right to stand trial within a reasonable period of time.

Characterization of delays [ 39 ] The characterization of the delays is the most demanding part for the trial judge because it requires carrying out a detailed analysis [16] without losing sight of the situation as a whole. [17] The delays must be computed but not by the application of a mathematical formula. [18] The inherent time requirements common to all cases, [19] normal or complex [20] and of the same nature, [21] must be recognized. [ 40 ] In a regular impaired driving case, like the one here, the time periods are normally no longer than a few months.

Here, the period between the information and the moment when the case could have been set for trial was two months, from March 30 to May 28, 2010. [ 41 ] This is therefore an inherent time requirement.

The Court believes, however, that the period running from May 28 to October 26 may be attributed to the prosecution for failing to disclose all of the relevant evidence during that time. [ 42 ] The delays attributable to the accused due to justified requests [22] must be identified and distinguished from those due to actions manifesting a deliberate attempt to delay the trial [23] ; in this case, the accused's actions demonstrate no dilatory tactics, on the contrary. [24] [ 43 ] His requests, such as his motion for disclosure of additional evidence, were justified. [25] [ 44 ] The Court applies the general teachings of the Supreme Court in Godin , where it is asserted that care must be taken before placing too much responsibility on counsel for the accused in the attribution of delays. [26] Ultimately, as attorneys, they have a duty to represent their clients in a manner consistent with their code of ethics, while also respecting, in their capacity as representatives of the judicial system, their duty to promote the proper administration of justice.

They certainly have the duty to defend the rights of their clients proactively. [27] But here, the Court does not see any inaction on the part of the attorney suggesting that the applicant did not wish to be tried within a reasonable time. [ 45 ] The constitutional challenge filed by the accused and the delay incurred by his position between his filing of the notice and the Supreme Court decision should not be attributed to either the accused or the prosecution.

Several decisions of other courts submitted by counsel for the prosecution himself are to the same effect and support the Court's characterization of this delay as neutral because it is inherent to this type of challenge. [28] [ 46 ] Although the delay between October and November of 2010 may be attributed to the exercise of the constitutional challenge, the accused's request for disclosure of the evidence of the audio recording must also be dealt with distinctly since this request could have been responded to promptly and separately from the constitutional case.

The Court notes that the prosecution made a choice in this respect by refusing to disclose this evidence. Three years later, however, it fulfilled its obligation to disclose the requested document and thereby, in the view of the Court, conceded its relevance from the very beginning. [29] [ 47 ] Without assigning blame, [30] some of these delays must nevertheless be attributed to the prosecution because its duty is to bring the accused to justice.

Consequently, it must take responsibility for delays caused by the failure to fulfill its obligations, such as the duty to disclose this evidence. [31] The delays caused by the refusal to disclose the certificates of compliance of the screening device may be characterized as neutral because they were related to the constitutional challenge but, with regard to the other evidence, which was requested several times over by the defence and finally disclosed three years later, the Court finds that a portion of those twenty-five months must be attributed to the Crown. [ 48 ] As for the institutional delays, an overall analysis is required, [32] but it ultimately falls to the prosecution to justify these systemic delays. [33] Here, the delay is the postponement of the motion to disclose from December 19, 2011, to April 27, 2012, and the rescheduling of the two trial dates from April to September of 2013, for a total of ten months. [ 49 ] This case is an exceptional situation that requires a unique decision. [34] In brief, for the purposes of this analysis under paragraph 11(

b) of the Charter , the Court is of the view that the forty-four months beginning on March 30, 2010, and running to today should be attributed as follows: • Two (2) months of inherent delays in this type of case, from March 20 to May 28, 2010; • Twelve (12) months attributable to the prosecution for its tardiness in disclosing available, relevant and useful evidence, from May 28 to October 6, 2010, and from November of 2012 to April of 2013; • Eighteen (18) months of neutral delay related to the constitutional challenge, from October of 2010 to November of 2011, three months of which the defence waived, and the period from April to November of 2012. • Twelve (12) months of institutional delay in setting the date to proceed on the motion to disclose, from December of 2011 to April 27, 2012, or in setting the trial date, from April to November of 2013. [ 50 ] Although the Court will not include the prospective delays [35] – that is, those that would be required to bring this trial to

completion – in its computation of the delays under review, it will take them into account in its assessment. [ 51 ] If the institutional delays are added to those attributable to the prosecution, for a total of twenty-four months, the delay goes far beyond the guidelines formulated by the Supreme Court in Morin [36] and what the Court considers reasonable in the circumstances of this specific case, since these delays are in addition to those relating the constitutional challenge. [37] The prejudice [ 52 ] Since the delay at issue is clearly too long, it must be determined whether this delay in bringing the accused to justice caused him any prejudice. [ 53 ] Here, the Court need not rely on a presumption.

No deduction or inference is required, since evidence of the nature and scope of the prejudice that Turcot alleges was adduced in his testimony.

Moreover, evidence of this prejudice is a key element in the assessment of the unreasonableness of the delay. [38] [ 54 ] First, the prejudice must be distinct from the normal prejudice experienced by all accused, i.e., the effect of being accused, of having to defend oneself, and being ostracized as a result. [39] [ 55 ] The case law is clear that proof must be made that the prejudice suffered is related to the delay in holding the trial and not to the charge itself. [40] [ 56 ] Prejudice to an individual's safety may be proved through evidence of stress, suffering, and anxiety caused by the abnormal delay in the progress of a case. [41] Prejudice may also take the form of personal, family or professional problems [42] experienced by an accused, stigmatization, or attacks on the accused's reputation [43] that go beyond usual inconveniences because of an abnormally long delay. [ 57 ] The Court finds that Turcot had an interest in being brought to trial promptly to try to dissipate the doubts that had been cast on his professional reputation and his integrity, two values important to any citizen but all the more precious to a lawyer. [44] [ 58 ] In his case, evidence was adduced that the length of the proceedings and, as a result, the climate created by the criminal charges, prolonged as it was by these delays, were particularly challenging for him.

The Court was able to assess his testimony, which was both eloquent and sober, on the stress he experienced and the impact on his personal life, family, and health, as well as on his professional life. [ 59 ] Evidence was also adduced that the length of the proceedings was partly the reason he was required to give up a teaching contract at the University of Sherbrooke law faculty, a dream that he had long held, because of the unease created by his presence among a certain group of legal professionals who were aware that he had been charged. This experience had a significant impact on him.

While these inconveniences were caused by the charges, his prejudice was greatly increased by the fact that the proceedings stretched out over nearly four years. [45] [ 60 ] The delays before his trial clearly prolonged the uncertainty related to the normal judicial process common to all accused. In his case, it was very likely amplified by the delay in obtaining a final decision. [ 61 ] We must also add the insecurity, stress, [46] frustrations, and worries that impacted his personal and family life, about which he testified modestly.

The Court believes that all of the "vicissitudes" to which Sopinka J. refers in Morin have been amply demonstrated. They were certainly emphasized, perpetuated, and aggravated by the passage of time. [47] [ 62 ] In its analysis, the Court found that a delay of nearly four years inevitably makes the preparation of a defence more difficult. The risk of the witnesses' memories fading, combined with the prolonged delay, unavoidably weakens the defendant's ability to make full answer and defence.

Weighing of the factors [ 63 ] When weighing the factors at this stage of the analysis, the Court must bear in mind that each case turns on its own facts. [48] In its judicial reasoning, the Court must weigh the interests that paragraph 11(

b) seeks to protect, the factors that led to the delays, the degree to which it exceeds the acceptable periods proposed by the Supreme Court, and all of the interests of society in ensuring that those who break the law are brought to justice. [ 64 ] All of the delays, their characterization, and all of the other factors in this decision, including the nature of the offences charged, are considered in the weighing exercise. The offences for which the accused is prosecuted are serious, as the Court does not trivialize the significance of drunk driving cases, even those prosecuted by way of

summary conviction. The prosecution briefly submitted that this is a case of impaired driving with a relatively low concentration and without any special circumstances. [ 65 ] In its balancing exercise, the Court must give a broad and liberal

interpretation to the Charter -protected rights, including the right to be judged within a reasonable time. Here, the accused demonstrated that, in the overall context of this case, he had an interest in this trial being held promptly even though he invoked his constitutional rights. Moreover, he did not remain passive. He raised his right to expeditious proceedings every time he could. [49] [ 66 ] It is worth noting the comments of McLachlin J. in Morin : "When trials are delayed, justice may be denied. Witnesses forget, witnesses disappear. The quality of evidence may deteriorate.

Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice”. [50] [ 67 ] It is clear that society has an interest in seeing accused tried and judged for their actions. But society has an even greater interest

in ensuring respect for the principles of fundamental justice, which are the foundation of our criminal justice system, and in maintaining the integrity of the administration of justice. [ 68 ] The Court, upon weighing all of the evidence, finds that the defendant Turcot has discharged his burden of proving real and tangible prejudice on a balance of probabilities, and consequently the unreasonable nature of the delay in being brought to trial. Appropriate remedy [ 69 ] The Court must now evaluate the remedy sought. [ 70 ] It is recognized that the choice of appropriate remedy under subsection 24(1) of the Charter in cases involving the infringement of paragraph 11(

b) is very often a stay of proceedings, [51] although the Court must determine whether any other remedies are possible. [52] [ 71 ] The Supreme Court notes that a stay of proceedings is appropriate only in the clearest of cases, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. [53] [ 72 ] In Camiran , [54] the Court of Appeal of Quebec recently added that a stay of proceedings is reserved for exceptional situations and that proof that the delay is actually unreasonable must be made before a trial will be prevented from being held. [ 73 ] In some cases, the mere passage of time is not sufficient proof to this end, but in this case, given the overall situation, including the nature of the charges, the long delay before the trial, the choices about disclosure made by the prosecution, and the evidence of the actual prejudice suffered by the accused, the Court finds that this situation meets the test to be characterized as exceptional and shall apply the appropriate remedy, a stay of proceedings.

FOR THESE REASONS, THE COURT: [ 74 ] ALLOWS the motion of the applicant Jacklin Turcot; [ 75 ] DECLARES the right of the applicant Jacklin Turcot to stand trial within a reasonable time period under paragraph 11(

b) of the Charter to be infringed; [ 76 ] ORDERS a stay of proceedings in this file with respect to the applicant Jacklin Turcot under subsection 24(1) of the Charter on both charges against him; __________________________________ Claire Desgens, J.C.Q. Mtre Andy Drouin Crown Prosecutor Mtre Marc-Antoine Carette For the accused [45] R . v . Chantal , supra note 4 at paras. 32–38; Autorité des marchés financiers v . Ledoux , supra note 41 at para. 45; Autorité des marchés financiers v . Valiquette , supra note 41 at paras. 88– 93.