2018 QCCA 198, 2018 QCCA 198

Unofficial English Translation R. c. Rice 2018 QCCA 198 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-006267-163 (505-01-082718-095) DATE: February 9, 2018 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A. ALLAN R. HILTON, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A. HER MAJESTY THE QUEEN APPELLANT – Prosecutrix v.

PETER RICE PETER FRANCIS RICE BURTON RICE SALVATORE CAZZETTA RESPONDENTS – Accused and ASSOCIATION DES AVOCATS DE LA DÉFENSE DE MONTRÉAL ASSOCIATION QUÉBÉCOISE DES AVOCATS ET AVOCATES DE LA DÉFENSE INTERVENERS JUDGMENT [ 1 ] On appeal from two judgments of the Superior Court, District of Longueil (the Honourable James L.

Brunton) rendered orally on September 21, 2016 and transcribed on September 28, 2016 that ordered a stay of proceedings against the respondents. [ 2 ] For the reasons of Vauclair, J.A., with which Duval Hesler, C.J., Morissette, Hilton and Gagnon, JJ.A concur, THE COURT: [ 3 ] DISMISSES the appeal. NICOLE DUVAL HESLER, C.J.Q. YVES-MARIE MORISSETTE, J.A. ALLAN R. HILTON, J.A. CLAUDE C. GAGNON, J.A. MARTIN VAUCLAIR, J.A.

Mtre Philippe Vallières-Roland Mtre Matthew FergusonDIRECTEUR DES POURSUITES CRIMINELLES ET PÉNALESFor the appellant Mtre Charles Shearson Mtre Marc-Olivier PerronWALSH & SHEARSONandMtre Ariane Gagnon-RocqueROY & CHARBONNEAU, AVOCATS S.E.N.C.For Peter Rice, Peter Francis Rice and Burton Rice, Mtre Nellie BenoitROCK, VLEMINCKX, DURY, LANCTÔT ET ASSOCIÉSFor Salvatore Cazzetta Mtre Nicholas St-Jacques Mtre Catherine BlanchardLE GROUPE NOURAIE INC.For l’Association des avocats de la défense de Montréal Mtre Gabriel Babineau Mtre Vincent PaquetCARETTE DESJARDINS S.N.A.For l’Association québécoise des avocats et avocates de la défense Date of hearing: September 13, 2017 REASONS OF VAUCLAIR, J.A. [4] The appellant (“the Crown” or “the prosecution”) appeals from two stays of proceedings ordered on September 28, 2016 by theSuperior Court (Brunton, J.), District of Longueuil, granting motions alleging unreasonable delay pursuant to s. 11(

b) of the CanadianCharter of Rights and Freedoms,

Schedule B to the Canada Act 1982 (U.K.), c. 11 (“the Charter”). [5] The orders were issued in the cases regarding Peter Rice, Peter Francis Rice and Burton Rice (“the Rices” or “Rice”: R. v. Rice,2016 QCCS 4659) and in the case regarding Salvatore Cazzetta (“Cazzetta”: R. c. Cazzetta, 2016 QCCS 4660). [6] The appeal concerns delays of 63.5 and 66.5 months, after deductions.

The appellant argues that Brunton, J. (hereinafter “themotion judge”) erred in evaluating the delays attributable to the defence and that, at any rate, he should have recognized transitionalexceptional circumstances as provided by the Supreme Court. [7] On appeal, these cases were joined with that of Sivaloganathan Thanabalasingham, in which reasons have been filed today. [8] In Rice, two associations, l’Association des avocats de la défense de Montréal and l’Association québécoise des avocats etavocates de la défense, were granted leave to intervene with respect to two questions: (1) what is meant by “the parties’ reasonablereliance on the law as it previously existed”? and (2) what constitutes “a case of moderate complexity in a jurisdiction with significantinstitutional delay problems”? [9] I will return several times to the helpful submissions the interveners have provided on these issues.

Preliminary Remarks Regarding s. 11(

b) of the Charter [10] In the wake of R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 and R. v. Morin, (SCC), [1992] 1S.C.R. 771, R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, became the third case to send shock waves through theinterpretation of s. 11(

b) of the Charter which provides that “[a]ny person charged with an offence has the right to be tried within areasonable time / [t]out inculpé a le droit d'être jugé dans un délai raisonnable”. It will certainly not be the last.

[11] In this country, an empirical evolution in the constitutional right to be tried within a reasonable time has occurred through aframework requiring analysis of numerous factors, assessed by judges and sometimes, of course, subject to revision on appeal. Inhindsight, it could be said that this constitutional right sought expression, and all signs seem to indicate that it still does. The SupremeCourt has striven to curtail the need for this quest. This is no small task. [12] It is, however, important not to be deceived by the apparently rigid approach set out in the new analytical framework.

In Cody,the Court reminds us that “properly applied, [the framework] already provides sufficient flexibility and accounts for the transitionalperiod of time that is required for the criminal justice system to adapt”: R. v. Cody, 2017 SCC 31, para. 3. I share this view. [13] We must always remember that the constitutional right set out at s. 11(

b) of the Charter protects both individual and collectiveinterests. The right to be tried within a reasonable time necessarily requires balancing interests and this balancing inevitably gives rise tosignificant tensions. These are created, in part, because in responding to the problems of delay that affect the criminal justice system, areasonable person may place more importance on one or another of these interests.

These tensions are exacerbated by the unique remedythat is prescribed once a violation has been confirmed, namely the stay of proceedings. [14] Nevertheless, respect for this constitutional right ensures the functionality of a judicial system that claims to be attentive to theaccused, to victims and to the society it serves. Consequently, though it may seem counterintuitive in the moment, just as the exclusion ofconclusive evidence is where the rights of the accused have been violated, a stay of proceedings does more to create a high-qualitysystem in the long run.

Neither punishing the Crown nor freeing an accused from pending charges, two collateral consequences, has everbeen the goal. [15] Forward-thinking is at the heart of this intervention which, it must be admitted, simultaneously bears witness to the system’sfailure in a given case.

If society has no interest in letting crimes go unpunished, neither does it have an interest in punishing crimes in asystem which does not respect the rights set out in the Constitution. [16] Having started well in Askov, a decision in which the judicial district of Montreal was lauded as an example, Quebec’s descentinto the abyss of unreasonable delays is astonishing, now having some of the longest delays in Canada: R. c. Wolfson, 2017 QCCS 1503,para. 19.

There is no doubt that all participants in the justice system must question their involvement. [17] After having witnessed the criminal justice system’s evident failure in satisfying the requirements of the Charter, a failurewhich affects both victims and the accused, the Supreme Court has tried to steer us back on track. [18] Within the framework of constitutional law concerning the right to be tried within a reasonable time, adding a few days todelays previously deemed reasonable quickly created a situation in which delays could be stretched like rubber bands.

No longer didthere seem to be limits to our tolerance, except in exceptional cases or at breaking points where it could be demonstrated that theaccused’s right to make full answer and defence had been compromised, and all this measured against the yardstick of the accused’shaste to be brought to trial: R. c. Lebel, 2013 QCCA 403, para. 128; R. c. Camiran, 2013 QCCA 452, para. 75; R. c. Duguay, 2006QCCA 1217; R. c. Jean-Jacques, 2012 QCCA 1628; Tremblay c. R., 2014 QCCA 690. [19] Despite the holding in R. v.

Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, Quebec’s courts – including our Court – havebeen hesitant to grant stays of proceedings in the absence of actual prejudice. It created general disillusionment regarding the recognitionof the right to be tried within a reasonable time, a climate of complacency has settled in, such that cases moved forward at a moderatepace, at best. [20] The Court recently revisited this issue in R. c.

Huard, 2016 QCCA 1701, referring to the decisions of the Supreme Court toreiterate that prejudice may be inferred from long delays: [TRANSLATION] [28] Here, the overall delay was 65 months, of which 50.5 months must be taken into consideration in evaluating the prejudice to therespondent. Even if the evidence with respect to prejudice is not voluminous, it is sufficient to confirm the judge’s conclusion that therewas prejudice.

Moreover, it is important not to lose sight of the existence of the simple presumption according to which the passage oftime alone causes prejudice to the accused and that, here, the respondent has lived with the daily “vexations and vicissitudes” of theseaccusations since 2010. [Internal citations omitted] [21] That the issue of prejudice is linked to the length of delay was confirmed by the Supreme Court in R. v. Godin, 2009 SCC 26, [2009] 2 S.C.R. 3, para. 31.

This is the proper approach to prejudice and that which courts should apply with respect totransitional exceptional circumstances, keeping in mind how long delays can be in such matters. [22] This is what leads the interveners to say that, in assessing transitional exceptional circumstances, it would be wrong to fall backon the institutional delays improperly tolerated in Quebec during the Morin era. They urge us to return to the guidelines then establishedby the Supreme Court.

They write at paragraph 7 of their factum that [TRANSLATION] “institutional delays which should not havebeen tolerated (but which were, due to the complacency of the time) cannot be relied upon to establish that the prosecution acted inaccordance with the law as it then was.” [23] The interveners are not wrong to argue that in assessing transitional exceptional circumstances, unreasonable delay should bemeasured in terms of the guidelines set out in R. v. Morin, (SCC), [1992] 1 S.C.R. 771. This is, moreover, what themotion judge did when he set the starting point for institutional delay at 18 months.

In Quebec, as elsewhere, hesitation to recognizeviolations of the right guaranteed by s. 11(

b) of the Charter and the extension of delays is due, among other things, to the discomfortcourts have with ordering stays of proceedings: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 35. This drastic remedyfor the violation of the constitutional right at issue is particularly troubling in very serious matters. Judges are always alive to theconsequences of terminating a matter in this way, but it is the only remedy available: R. v. Morin, [1992] 1 S.C.R. 771, 808; R. c.

Callocchia, (QC CA), [2000] R.J.Q. 2841, para. 77-78, 101 (C.A. Que.); Tremblay c. R., 2014 QCCA 690,para. 110. [24] Without adjudicating the matter, the Supreme Court has twice mentioned the possibility of an alternative remedy. In Morin,Sopinka J. did not decide the question because there had been no violation: R. v. Morin, (SCC), [1992] 1 S.C.R. 771,808. In Jordan, the majority wrote, in a footnote, that the parties had not requested such an analysis: R. v.

Jordan, 2016 SCC 27 ,[2016] 1 S.C.R. 631, para. 35. [25] Certainly we must acknowledge that this unique remedy solicits reactions from beyond the judiciary: The Senate StandingCommittee on Legal and Constitutional Affairs, Delaying Justice Is Denying Justice: An urgent need to address lengthy court delays inCanada (final report), June 2017, p. 41-46; Christopher Sherrin, Reconsidering the Charter Remedy for Unreasonable Delay in CriminalCases, 20 Can. Crim. L.

Rev. 263. [26] Though the outcome may disappoint, in the sense that the matter is not adjudicated and the community, including the victim,may feel left behind, each stay of proceedings must, for the time being, serve as a shock to all participants in the justice system andgovernments. It allows us to ensure that matters are resolved quickly, to everyone’s benefit, including that of the accused and of thevictim.

Where slippage is noted, a stay of proceedings affirms the priorities of the justice system. [27] The Supreme Court reminds judges, moreover, that the Constitution sometimes requires a stay of proceedings and that judgesmust take this step to promote the long-term functionality of the justice system. The Court demands as much for the benefit of the public,the victim and the accused. This constitutional right forces participants in the system to work such that trials can be held within areasonable time.

If the Crown, including its counsel, does not exert the necessary effort, it runs the risk of stayed proceedings. If theaccused does not exert the necessary effort, the accused risks losing constitutional protection. This is the culture change called for by theSupreme Court. [28] Indeed, we might have believed that criminal matters could wait.

Delay often occurs to the detriment of victims and those closeto them who must wait longer than they would hope to begin a new chapter, sometimes to the detriment of the accused – especially thosein pre-trial custody – who are unjustifiably made to wait before responding to accusations, and always to the detriment of the justicesystem the legitimacy of which flows in large part from its ability to judge, and if necessary punish, wrongdoers in a timely fashion. A Global Assessment Entitled to Deference [29] At the time of writing these reasons, much ink has been spilled with respect to Jordan/Cody.

Nevertheless, I will briefly revisitthe overarching principles. [30] The Supreme Court has simplified the legal principles applicable in assessing whether the right to be tried in a reasonable timehas been respected. On one hand, the Court let it be known that the analytical framework applied previously had led the courts intoinefficient exegesis of various factors, the consequence being that the analysis had become difficult to apply. With its new analyticalframework, the Supreme Court expressed the hope that an end would be put to inefficient, nit-picky micro-calculations: R. v.

Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, para. 37, 111; R. v. Vassell, 2016 SCC 26 , [2016] 1 S.C.R. 625, para. 3. [31] The challenge is significant for judges, and perhaps even more so for appellate judges from whom the Supreme Court requiresdeference towards “the expertise”, or might we say, the experience, of trial judges: R. v. Cody, 2017 SCC 31 para. 31, 64; R. v. Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, para. 71, 174. [32] The suggested approach is rigorous, but based on general concepts.

In determining whether there has been a violation, judgesmust respect the analytical framework or run the risk of seeing their decision reversed by an appellate court which discerns an error oflaw. [33] However, it falls to trial judges to evaluate each situation. Here, appellate courts must show deference. Appellate courts mustnot intervene unless it can be demonstrated that a judge erred in drawing an inference or came to a clearly wrong conclusion which isunsupported by the evidence or which is clearly unreasonable, or made some other palpable and overriding error that impacts the result:R. v.

Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6, para. 9. [34] Such limited intervention will avoid a return to the former context of unending gray areas into which the point of no returnfades and is lost. [35] A court of appeal must necessarily accord a trial judge the discretion to assess different situations. The judge knows the court inwhich that judge functions and how it works, its context and the players involved.

Among other things, a trial judge has specialknowledge of similar matters which have been the subject of neither an appeal nor any other particular analysis, but which nonethelessconstitute undeniably important guideposts. The Framework [36] The total delay must be determined, from which the delays attributable to the defence are subtracted and the difference – the netdelay – is used to argue whether the delay is reasonable.

If the net delay is below the presumptive ceilings of unreasonable delayestablished by the Supreme Court, it will fall to the defence to establish that the delay is unreasonable. [37] If the net delay exceeds those ceilings, it falls to the prosecution to establish that the delay is nevertheless reasonable. Tosucceed, the prosecution must establish that discrete events have occurred and that the delays caused by these events should be deducted,in whole or in part.

If, despite this deduction, the delay still exceeds the ceilings, then it is open to the prosecution to establish that thematter is particularly complex. In such a case, its task is not to subtract a delay, but rather to establish that the complexity of the casejustifies the excess observed, such that the delay is reasonable.

[38] Where the matter was currently in the system when the Jordan framework was set out, that is on July 8, 2016, the SupremeCourt has indicated that transitional exceptional circumstances may be invoked. [39] I now turn to the different stages of this analysis. 1) The total delay presumed to be unreasonable [40] The Supreme Court set two ceilings beyond which any delay is presumed to be unreasonable. The ceilings vary depending onhow the prosecution elects to proceed.

The total delay or the “presumptive ceiling” beyond which delay is considered unreasonable is 18months for charges tried before a provincial court without a preliminary inquiry and 30 months for those tried before a superior court orin which a preliminary inquiry is held: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 46, 49; R. v. Cody, 2017 SCC 31,para. 20. It is important to note that these are not absolute limitation periods: R. v. Jordan, [2016] 1 S.C.R. 631, para. 115. [41] Total delay is calculated from the time charges are laid to the actual or anticipated end of the trial.

On one hand, it must thus beunderstood that the ceilings and framework include only the time required to complete the presentation of evidence at trial and pleadings.By taking the actual or anticipated end of the trial as a bookend (the latter corresponding to the duration foreseen by the parties tocomplete their evidence and pleadings), the Supreme Court could not have believed that the verdict would be rendered at the same time.On the other hand, the Supreme Court voluntarily set aside the question of delays in sentencing for another time: R. v. Jordan, 2016 SCC27 , [2016] 1 S.C.R. 631, para. 49.

This delay is therefore not included in the ceilings. [42] As such, Jordan sets out what is a reasonable amount of time to handle a charge – that is to say, to file evidence and to hear theparties so as to render a verdict. In setting these ceilings, the Supreme Court drew on “a qualitative review of nearly every reported s.11(

b) appellate decision from the past 10 years, and many decisions from trial courts”: R. v. Jordan, 2016 SCC 27 , [2016]1 S.C.R. 631, para. 106. [43] The presumptive ceilings should not be reached in the vast majority of cases. Indeed, in both cases the total maximum delaytakes into account acceptable institutional and inherent delays, including those flowing from the increasing complexity of cases: R. v.Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 53, as well as an eventual defence: R. v. Jordan, [2016] 1 S.C.R. 631,para. 65; R. v.

Cody, 2017 SCC 31, para. 29, prejudice now being presumed once the ceilings have been attained: R. v. Jordan, [2016] 1S.C.R. 631, para. 52-55. [44] It is interesting to note that the judges who drafted the concurring reasons in Jordan highlighted that “[f]or the vast majority ofcases, the ceilings are so high that they risk being meaningless. They are unlikely to address the culture of delay that is said to exist. Ifanything, such high ceilings are more likely to feed such a culture rather than eliminate it”: R. v.

Jordan, 2016 SCC 27 , [2016] 1S.C.R. 631, para. 276. [45] It is difficult to be more clear. [46] The majority responded, in short, by stating that tolerance had been factored into the ceilings: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, para. 83, and that the majority of cases should be resolved before the ceilings were reached: R. v. Jordan,[2016] 1 S.C.R. 631, para. 56. In the Court’s opinion, these ceilings already reflect “a long time to wait for justice”: R. v. Jordan, [2016]1 S.C.R. 631, para. 57.

The ceilings are indicative of reasonable delay in cases that are not “the norm”, but rather include some inherentdifficulties. [47] The justice system should thus adjust its normal operations to respect delays below 18 or 30 months, these being the extremelimits clearly reserved for matters more complex than most. [48] Once the total delay has been identified, as I have mentioned, delays caused by the defence must be deducted since “[t]hedefence should not be allowed to benefit from its own delay-causing conduct”: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R.631, para. 60. 2) Delays attributable to the defence [49] Delays attributable to the defence are deducted from the total delay. An accused may not cause useless delay with a viewtowards “benefiting” from a stay of proceedings: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 60-63. [50] The accused may waive a portion of the total delay, even implicitly, though this alone does not imply waiver of the right itself.The Court writes that “[w]aiver can be explicit or implicit, but in either case, it must be clear and unequivocal.

The accused must havefull knowledge of his or her rights, as well as the effect waiver will have on those rights”: R. v. Jordan, 2016 SCC 27 , [2016] 1S.C.R. 631, para. 61. [51] Let me be clear. Delays that are reasonably necessary to prepare the case and legitimate attempts to defend against a charge areincluded in the ceilings established by the Supreme Court.

Though the rule is clear, its application appears, to me, more complex.Clearly, reasonable preparation time cannot, in a case of moderate complexity, constitute a very significant proportion of the ceiling. [52] Obviously the defence may make requests or present motions that will give rise to delays. The Supreme Court specifies that thetime necessary to prepare such proceedings, and the time required to respond to requests which are not frivolous, should not be deducted,even when the court and the prosecution are ready to proceed: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 65. [53] To the extent that the defence expresses a need for extended preparation, this may be an important indicator that the matter is

complex, as contemplated by exceptional and transitional circumstances, and may eventually justify exceeding the established ceilings.It falls to judges, drawing on their experience, to establish what reasonable delay is in each case, taking into account the collectiveinterest in the right to be tried within a reasonable time and the other constitutional rights of the accused, notably the right to make fullanswer and defence: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 65. [54] This means, therefore, that once the charges have been laid, only delays that result from unjustified conduct on the part of theaccused will be deducted. [55] Once again, the assessment is not quantitative. Judges must draw distinctions between legitimate and illegitimate conduct andthus account for delays that should be deducted. The answer will not flow merely from the number of motions or adjournments, butrather from a global analysis of defence conduct in the specific context of the charges laid, which includes a qualitative assessment.

Herewe find a first gap in the legal culture, and it is a sizeable one. [56] Illegitimate conduct is not synonymous with professional misconduct: R. v. Cody, 2017 SCC 31, para. 35. Total disregard forthe law or frivolous strategies may cause significant delays attributable to the defence. For example, in R. v. D.C., 2017 ONCA 483,failure to present pursuant to

section 276.1 Cr.C. to cross-examine a complainant regarding prior sexual activity caused an 11 monthdelay that was attributed to the defence. [57] In most cases, however, requiring judges to venture into this terrain, they must proceed with great caution. Faced withreasonable explanations from the defence, judges should not be over-hasty to conclude that conduct is illegitimate, but neither, I hastento add, should judges hesitate to come to this conclusion if the answer is clear.

The assessment is highly factual, inexorably tied to thefacts of each case, and there can be no question of creating a strict taxonomy of delays, even in similar matters. Defence decisions aremade in light of the people involved in the case, the particular facts of the case, and the questions of law that these facts raise. [58] That being said, while the Crown always has the duty to bring an accused to trial, it is clear that the defence cannot simplyremain passive but rather has a duty to minimise and avoid causing delays: R. v. Mallozzi, 2017 ONCA 644, para. 31.

The importance ofcollaboration and the key role it plays in resolving problems is unquestionable where the accused seeks respect for the right to be tried ina reasonable time. This is what the Supreme Court has called “proactive, preventative problem solving”: R. v. Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, para. 112. This is clearly true when delay remains below the established ceilings, since the accused mustthen demonstrate that “it took meaningful and sustained steps to expedite the proceedings”: R. v.

Jordan, [2016] 1 S.C.R. 631, para. 113. [59] By presuming prejudice once the ceilings have been reached, the Court leaves room to account for defence conduct. Theceilings beyond which delays are presumed to be unreasonable, among other things, reduce the number of difficulties associated with theconcept of prejudice, but as the majority highlighted in Jordan: “[prejudice] also has a strong relationship with defence initiative, in thatwe can expect accused persons who are truly prejudiced to be proactive in moving the matter along”: R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, para. 109. [60] The Court specified that “[d]efence conduct encompasses both substance and procedure – the decision to take a step, as well asthe manner in which it is conducted, may attract scrutiny”: R. v. Cody, 2017 SCC 31, para. 32 (emphasis in the original). [61] What’s more, in appropriate cases, a wait-and-see approach or, on the contrary, an obstructionist approach, will be interpreted asillegitimate conduct giving rise to delay: R. v. Cody, 2017 SCC 31, para. 33.

Judges must evaluate these issues with care, but they cannotbe ignored. [62] Judges have a role to play and may, in appropriate circumstances, make certain demands of the parties: see, notably the relevantholdings in Bordo, 2016 QCCS 477, para. 126 to 207. They must be innovative while remaining sensitive to the fairness of theproceedings: R. c.

Charron, 2017 QCCS 688. [63] Among other things, in appropriate cases, the prosecution should be in the habit of preparing two important things: the trialbinder and the disclosure of evidence, the former shedding light, notably, on the relevance or clear irrelevance of components of thelatter. [64] It should also be recalled that the Supreme Court reiterated that judges have the power to dismiss clearly unfounded motionssummarily: R. v. Cody, 2017 SCC 31, para. 38; R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 63, in order to avoidwasting limited judicial resources: R. c.

McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66, para. 31. Judges should not hesitate to askcounsel to summarize the evidence expected from a voir-dire supporting a motion and to summarily reject motions which have noreasonable chance of success: R. v. Cody, 2017 SCC 31, para. 38. In Kutynec, the Court recalled that it will sometimes be difficult forcounsel to do so, and that some flexibility is necessary – especially where the defence has not yet had the opportunity to explore thetopic: R. v. Kutynec (1992), (ON CA), 70 C.C.C. (3d) 289, 302 (Ont.

C.A.). [65] Undoubtedly, a clearly unfounded motion is one based on conjecture or which is speculative, fanciful, disruptive,unmeritorious, obstructive and time-consuming: R. v. McNeil, 2009 SCC 3 , [2009] 1 S.C.R. 66, para. 29; R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727, para. 32; R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 63; R. v. St. Amand,2017 ONCA 913, para. 75. Presenting useless motions is no longer the role of defence counsel. Consequently, it is possible that whatmay have initially appeared to be a well-founded motion will gradually reveal itself to be absurd, thus wasting precious time.

Judges mayattribute such delays to the defence. [66] The analysis is global, such that “[t]he overall number, strength, importance, proximity to the Jordan ceilings, compliance withany notice or filing requirements and timeliness of defence applications may be relevant considerations. Irrespective of its merit, adefence 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 markedinefficiency or marked indifference toward delay”: R. v. Cody, 2017 SCC 31, para. 32. All of these factors are relevant and will shedsome light on the matter. The timing of presentation, in relation to the established ceilings, is obviously a troubling factor. Judges mustassess and weigh the importance of the point raised. A large number of motions that raise issues relevant to the matter may be morelegitimate than one or two irrelevant motions. In principle, the latter will be seen as such and quickly ruled upon by the judge.

[67] In all cases, the Supreme Court reminds us that this is by no means an exact science, and that it falls to a trial judge to assess thedifferent “causes” of delay, a decision that is “highly discretionary”: R. v. Cody, 2017 SCC 31, para. 31, made on the basis of theevidence and the submissions of the parties. [68] To this end, the appellant indicates, or so it seems, that the motion judge erred in law in adjudicating the matter without thebenefit of transcripts from different stages of the proceedings.

This is how the appellant interprets the guidance of this Court in R. c.Béliveau, 2016 QCCA 1549, where Gagnon, J.A. emphasized the importance of transcripts to understanding the underlying reasons forthe progress of a given case. It is clear that the passage from this decision explains that the case on appeal must be sufficiently completeto review the issues raised: see also R. v. Aalami, 2017 ONCA 624, para. 26-27. [69] In my view, producing transcripts is not always necessary and it is not an error of law if a trial judge completes the task at handwithout consulting transcripts.

It is very clear that the Court has never imposed the duty of making evidence in a trial court through filingtranscripts, something that would be unrealistic given the current and unmitigated delays in producing transcripts that plague Quebec,particularly with regard to English-language proceedings. [70] In a trial court, the parties are free to make use of the most efficient means of establishing the facts that underlie theirarguments.

In most cases, the parties will agree on most stages of the trial and the delays that occur in the normal progression of a case.Submissions from counsel are acceptable and sufficient to inform judges of the position of each of the parties and to adjudicate disputes.Formal evidence and voir-dires will not always be necessary. [71] As Sopinka, J. recalled with respect to the burden of proof, “it can, and in many cases will, be discharged not by leading orpointing to evidence but by oral submissions of counsel without the necessity of a voir dire. […] Viva voce evidence and a voir dire may,however, be required in situations in which the presiding judge cannot resolve the matter on the basis of the submissions of counsel”: R.v.

Chaplin, (SCC), [1995] 1 S.C.R. 727, para. 31; see also R. v. L. (W.K.), (SCC), [1991] 1 S.C.R.1091, p. 1103. [72] Another sensitive matter that impacts defence conduct is representation by counsel. Here, the unavailability of counsel for Mr.Cazzetta, due to her involvement in another trial, has been invoked. The unavailability of defence counsel may be a source of delay, asmay be a change in counsel, whatever the reason. In R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, the Supreme Court did notrequire counsel to be available at all times. That analytical framework was different.

Under Jordan, when the prosecution and the courtare ready and subject to reasonable preparation, delays which slow the trial due to the unavailability of counsel: see R. v. Khoury, 2016QCCS 5009, or due to a change in counsel, will be attributed to the defence. [73] The accused certainly has the right to obtain a certain amount of time so that new counsel can prepare: R. c.

Guimont, 2017QCCA 1754, para. 50, but judges must determine what is necessary and, depending on the circumstances, may attribute this delay to thedefence or find that a discrete event has occurred. [74] There will come a time, possibly, when the accused must revaluate potential options if, in light of all the circumstances, counselis not available within a reasonable period of time. The right to the counsel of one’s choice is not absolute. Counsel must accept theconditions related to the mandate: R. c. Racine, 2011 QCCA 2025; Québec (Procureur général) c.

C. (R.), (QC CA),[2003] R.J.Q. 2027, para. 112, 120, which include being available to complete the mandate within a reasonable period of time, becausethe constitutional right guaranteed by s. 11(

b) of the Charter has a collective dimension and thus it is wrong to say that it belongs only tothe accused. [75] Once the trial date has been set, counsel must be available on that date. Given the proactive attitude counsel is asked to adopt,counsel may certainly accept to move the trial date forward but in no case should counsel be strictly limited from engaging in othermatters that reduce their availability. 3) Net delay [76] Once the delays attributable to the defence have been deducted, the resulting net delay is measured against the applicable 18 or30 month ceiling, as the case may be.

The net delay may thus fall above or below the established ceilings. [77] If the delay falls below the established ceiling, the burden rests with the defence to establish that, despite having takenmeaningful steps and despite the accused’s sustained efforts to expedite the proceedings, the delay is or was clearly longer than itreasonably should have been: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 82.

This is not the case in the appealsbefore this Court. [78] If the delay still exceeds the ceiling, the onus is on the prosecution to rebut the presumption that the delay is unreasonable bydemonstrating exceptional circumstances that justify the delay: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 58, 68. [79] This is the only justification: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 81. [80] It is appropriate here to reproduce the precise text of the majority’s reasons, which emphasize particular words: [69] Exceptional circumstances lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonablyunavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise. So longas they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirelyuncommon. * [69] Des circonstances exceptionnelles sont des circonstances indépendantes de la volonté du ministère public, c’est-à-dire (1)qu’elles sont raisonnablement imprévues ou raisonnablement inévitables, et (2) que l’avocat du ministère public ne peut raisonnablement

remédier aux délais lorsqu’ils surviennent. Dans la mesure où elles répondent à cette définition, les circonstances sont jugéesexceptionnelles. Il n’est pas nécessaire qu’elles satisfassent un autre critère en étant rares ou tout à fait insolites. [Italics in the original] [81] “Exceptional” circumstances will be varied and the list of exceptional circumstances is not closed. Once again, we must rely onthe good sense and experience of trial judges: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 71, which also calls fordeference with respect to their decisions. [82] Nevertheless, the Supreme Court explains that exceptional circumstances will generally fall into two categories: discrete eventsand particularly complex cases: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 71. [83] The first category consists of delays that should be deducted, while the second rebuts the presumption that a delay isunreasonable: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 75, 80; R. v.

Cody, 2017 SCC 31, para. 48, 64. 4) Net delay that exceeds the established ceilings and exceptional circumstances 4.1) Discrete events [84] Discrete events (l’événement distinct et exceptionnel), the expression used by the Supreme Court, are those that disturb thenormal course of the matter and which no one, understood here as the prosecution and the justice system, could do anything to prevent:R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 75. [85] Once such an event has occurred, however, the prosecution and the justice system are expected to act to resolve the problem bygiving priority to the affected cases.

The absence of such mobilisation may result in delays not being deducted from net delay: R. v.Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 75. [86] Although the question is not directly raised by these appeals, I note here that reserving judgment on interlocutory matters,which can put the brakes on a trial and, for this reason, render the court unavailable, may constitute discrete events as contemplated bythe Supreme Court. They may also be an expression of the complexity of the issues raised, and the particular complexity of the case: R.v. Mamouni, 2017 ABCA 347, para. 55.

In such matters, we must rely on the good sense and experience of judges and counsel. 4.2) Particularly complex cases [87] Particularly complex cases are the second type of exceptional circumstances that will justify exceeding the established ceilings.What must be remembered here is that the ceilings already accommodate matters of some complexity, distinguishable from a normalcase.

A particularly complex case is even more complex, but in any event, it must be demonstrated that the complexity justifies theexcess invoked. [88] The analysis centers on the nature of the evidence or the issues raised by the trial and their impact on the exceptional durationof the trial or on trial preparation. [89] The Supreme Court has explained that such cases will often be characterized by “voluminous disclosure, a large number ofwitnesses, significant requirements for expert evidence, and charges covering a long period of time”, or by the presence of multiple co-accused, or by “a large number of charges and pre-trial applications, novel or complicated legal issues, and a large number of significantissues in dispute”: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 77. Defence requests for extended preparation time, Irepeat, are another important indicator of the complexity of a case. [90] Faced with a particularly complex case, the prosecution must, however, take steps to mitigate the difficulties as much aspossible. It must be shown that the prosecution has “a concrete plan to minimize the delay occasioned by such complexity”. Theprosecution “must be alive to the fact that any delay resulting from their prosecutorial discretion must conform to the accused’s s. 11(b)right”: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 79. [91] This requirement is not new, but it is clearly a second gap in the legal culture. [92] The new framework highlights the Crown’s fundamental role in conducting criminal prosecutions – a role it has always had: R.v. Anderson, 2014 SCC 41 , [2014] 2 S.C.R. 167. Obviously, courts must be very cautious before interfering with theprosecution’s choices. I have no doubt that the new framework is not an indication that judges may now meddle in prosecutorialdecision-making without good reason.

However, it does require that judges – now more than ever – ensure that cases remain on trackand, in this sense, the prosecution will have to establish that it has control over all aspects of the case, that it is ready to react and that it isready to adjust so that the trial is held within a reasonable period of time. [93] It should be remembered that in Auclair the Supreme Court confirmed the importance of judicial intervention with respect tomatters generally left to prosecutorial discretion so as, “to protect the rights of the accused guaranteed by the Charter, and to further thepublic’s interest in avoiding the total collapse of the prosecution that could have been caused by unreasonable delays”: R. v.

Auclair,2014 SCC 6 , [2014] 1 S.C.R. 83, para. 2-3. The prosecution may now be required, a bit more than before, to reassure the judgethat the case is progressing or, certainly, to justify exceeding the applicable ceiling when this occurs. [94] Auclair illustrates that the prosecution may not undertake a particularly complex criminal prosecution simply because it hasevidence. The prosecution has concrete responsibilities to the accused, to victims and to the justice system in general.

The prosecutionmust be well-prepared and well-planned in accordance with the complexity and clear challenges the case presents and counsel must havethoughtful strategies for countering difficulties, which may sometimes require making compromises. [95] Thus prepared, the prosecution may undertake particularly complex proceedings that will justify exceeding the ceilings

established by the Supreme Court and, like the Court of Appeal for Ontario, I agree that in such cases, the Crown should not be subjectedto undue pressure to abandon a meritorious case or to accept all defence proposals for the sake of expediency: R. v. Saikaley, 2017ONCA 374, para. 38-41 and 47. [96] That being said, judges must determine whether the prosecution “took reasonable available steps to avoid and address theproblem before” the delay exceeds the ceiling: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 70. To this end, thechoices the prosecution does and does not make are relevant: R. v.

Manasseri, 2016 ONCA 703, para. 367. The obligation is one ofmeans, not result. The time which the prosecution has to respond prior to reaching the ceiling obviously becomes an important elementof the analysis: R. v.

Jordan, [2016] 1 S.C.R. 631, para. 74. [97] Beyond the indicators mentioned earlier, assessing the complexity of a case is not a matter of applying a single objectivecriterion, thus requiring both that judges draw on their experience to resolve the issue and also that courts of appeal show deference.Otherwise, the exercise will quickly revert to one of micro-calculations and subtle distinctions, an approach that, under the oldframework, has exhausted the parties, the judges and the meaning of this constitutional protection. [98] After having heard the parties, the judge is best situated to draw the distinction between a particularly complex case and a casewhich the prosecution has unnecessarily made more complex or which the prosecution insists on making more complex for no reason.The judge is also best situated to evaluate the reasonableness of defence preparation time and to shorten that time period whenpreparation is unnecessarily long. [99] If the judge concludes that the particular complexity of the case explains the excess delay in question, the delay is justified andis not unreasonable.

If not, a stay of proceedings must follow. 5) Transitional exceptional circumstances [100] For cases in the system at the time when Jordan was rendered, the Supreme Court has provided for transitional exceptionalcircumstances, thus avoiding an overly-strict application of the new analytical framework to previously existing situations, where theparties acted in light of the former analytical framework. As the Supreme Court explained “it is not fair to strictly judge participants inthe criminal justice system against standards of which they had no notice”: R. v.

Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631,para. 94. [101] As a last resort, if the net delay exceeds the ceiling, the delay related to discrete events does not bring the delay below theceiling and the delays are not justified by the particularly complex nature of the case, the prosecution may still fall back on transitionalexceptional circumstances. [102] This transitional regime may be applied in two situations: where the parties have reasonably relied on the law as it previouslyexisted or where the case is of moderate complexity in a jurisdiction facing significant institutional delays. 5.1) The parties reasonably relied on the law as it previously existed [103] The prosecution must establish that the delay “is justified based on the parties’ reasonable reliance on the law as it previouslyexisted”, which requires “a contextual assessment, sensitive to the manner in which the previous framework was applied”: R. v.

Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, para. 96. Or, as the Court wrote at paragraph 68 of R. v. Cody, 2017 SCC 31: [68] Like case complexity, the transitional exceptional circumstance assessment involves a qualitative exercise. It recognizes “the factthat the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice” and that “change takes time”(Jordan, at paras. 96-97).

The Crown may rely on the transitional exceptional circumstance if it can show that “the time the case hastaken is justified based on the parties’ reasonable reliance on the law as it previously existed” (Jordan, at para. 96).

Put another way, theCrown may show that it cannot be faulted for failing to take further steps, because it would have understood the delay to be reasonablegiven its expectations prior to Jordan and the way delay and the other factors such as the seriousness of the offence and prejudice wouldhave been assessed under Morin. [104] In Williamson, the Supreme Court contemplated the following factors: the complexity of the matter, the duration of the periodexceeding the Morin guidelines, initiatives taken by the prosecution and defence to move the case forward, and prejudice suffered by theaccused: R. v.

Williamson, 2016 SCC 28 , [2016] 1 S.C.R. 741, para. 26-30. [105] In Cody, the Court specified that the seriousness of the offence, the prejudice caused by the delays and the general degree ofdiligence demonstrated by the parties all play an important role in applying transitional exceptional circumstances: R. v. Cody, 2017 SCC31, para. 74; R. v. Baron, 2017 ONCA 772, para. 42. Where some of the delays have occurred subsequent to Jordan, “the extent to whichthe parties and the courts had sufficient time to adapt” must be considered: R. v.

Cody, 2017 SCC 31, para. 71. [106] Where the case took place entirely before Jordan, a reasonable delay under Morin may well remain reasonable due totransitional exceptional circumstances: R. v. Gordon, 2017 ONCA 436, para. 23. However, “the delay might be unreasonable eventhough the parties were operating under the previous framework. The analysis must always be contextual.

We rely on the good sense oftrial judges to determine the reasonableness of the delay in the circumstances of each case” and the Court gave as an example a case inwhich the delays significantly exceed the ceiling, in a simple case, due to the errors and repeated missteps of the prosecution: R. v.Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 98. 5.2) Cases of moderate complexity in a jurisdiction with significant institutional delay problems [107] A second instance in which transitional exceptional circumstances may justify delay exceeding the ceiling is where a case ofmoderate complexity is conducted in a jurisdiction with significant institutional delays.

Indeed, first, the situation may limit what counselfor the prosecution are able to do to advance the case and, second, a certain amount of time is necessary for things to change: R. v.Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 97.

[108] No one would argue that institutional days can be resolved overnight. Moreover, in a judicial district facing significantinstitutional delays, the system must be given time to adjust. A moderately complex case that should, in principle, be concluded beforereaching the established ceilings may well require more time. In these circumstances, where acceptable institutional delays explain theinability to conclude a trial before reaching the established ceiling, the prosecution should not be strictly held to doing so.

If someunfortunate decisions on the part of the prosecution have contributed to the delay, judges may make decisions based on the length ofsuch delays. [109] It is clear that everything depends on what caused the delay and the totality of the circumstances. The Supreme Court did notelaborate much on what would limit the application of transitional exceptional circumstances, giving the sole example of a delay whichvastly exceeds the ceiling because of repeated mistakes or missteps by prosecution in a simple case: R. v.

Jordan, 2016 SCC 27, [2016] 1 S.C.R. 631, para. 98. [110] Judges must identify all sources or causes of delay: R. v. Vassell, 2016 SCC 26 , [2016] 1 S.C.R. 625, para. 4; Tremblayc. R., 2014 QCCA 690, para. 43; R. c. Béliveau, 2016 QCCA 1549, para. 98; R. c. Antoine, 2017 QCCS 1325, para. 127. Once again, theanalysis in question is not fixed and it is necessary to “rely on the good sense of trial judges to determine the reasonableness of the delayin the circumstances of each case”: R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631, para. 98.

The Rice and Cazzetta files [111] On June 3, 2009, the Rices and Cazetta were jointly accused of fraud and conspiracy to commit fraud against the provincial andfederal governments by eluding taxes on contraband tobacco products for a total of some $67 million. [112] The charges were filed following an extensive police investigation and, in the beginning, implicated dozens of accused.

Theprosecution also sought convictions for a criminal organization offence, Cazzetta being, according to the prosecution, a member of theHells Angels. [113] The proceedings were obviously punctuated by numerous court appearances, requests of all kinds and intermittent decisionswhich explain the delay. [114] The vast majority of this delay occurred prior to R. v. Jordan, 2016 SCC 27 , [2016] 1 S.C.R. 631 and R. v. Cody, 2017SCC 31. [115] The Rices and Cazzetta appeared on the same date in a single file. On March 24, 2010, the respondents requested a fullpreliminary inquiry, not to be limited to specific questions.

The inquiry was scheduled, but would only be completed on April 27, 2012,with committal to trial being ordered without a single witness being heard. [116] In fact, the full preliminary inquiry was set to take five weeks, involving nine defence lawyers and two Crown attorneys. Theduration of the proceeding was reduced as evidence was disclosed. On October 1, 2010, the inquiry was reduced to four days, and onApril 18, 2011 to a single day. [117] All counsel explicitly waived the delays between October 1, 2010 and April 18, 2011, or 6.5 months.

The parties then agreed toadjourn until October 25, 2011, waiving the delays between April 18 and October 25, 2011, or 6 months. On that date, the partiesexpected to invoke the proceeding set out at s. 539 Cr.C.: an order to stand trial with consent. [118] Thus, on October 25, 2011 no witnesses were heard, the respondents admitted that the appellant had met its burden forcommittal to trial, and the parties agreed to push back the voluntary examination to April 27, 2012. In his factum, Cazzetta acknowledgesthat he waived the 6 month delay between October 25, 2011 and April 27, 2012.

The Rices deny that they waived this period. However,the transcripts allow us to conclude that these delays were waived on all sides. [119] The motion judge held that the defence had waived a limited period of 6 months. The Rices admit that they waived a secondperiod of 6.5 months. For his part, Cazetta acknowledges an additional 6 month waiver that should also be attributed to the Rices.

Forthe purposes of this appeal, all respondents should be recognized as having waived 18.5 months in total. [120] On April 27, 2012, everyone was committed to trial and the case was adjourned until the start of the Superior Court’s judicialyear, September 5, 2012. On this date, with the prosecution’s consent, multiple co-accused re-opted so as to plead guilty before the Courtof Quebec.

As for the other co-accused, including the Rices and Cazzetta, their cases were adjourned by consent to January 8, 2013, witha view to continuing negotiations with the prosecution (4 months). [121] On January 8, 2013, a date was sought for a trial expected to last 6 weeks. Cazzetta announced that, unlike the other accused, hewished to be tried in French and he proposed to hold two trials, a more judicious choice than holding a bilingual trial which would clearlybe longer. The appellant opposed this suggestion.

The Court offered dates at the beginning of September 2013, but at least one lawyer forthe defence was unavailable until November and another until mid-December. After discussion, an 8 week trial was set for January 3,2014. [122] The files took a different turn when, in July 2013, counsel for Cazzetta experienced health problems and, for this reason, amotion for a separate trial was filed and granted on November 5, 2013, despite opposition from the prosecution. The two cases wouldtake separate but parallel paths.

The motion judge rendered two decisions, both of which I will address in these reasons, makingdistinctions as necessary. Rice [123] On November 29, 2013, the Rices announced that they would file some 13 preliminary motions before the trial to come,including a motion to draw up a band list for the Kahnawake reserve in order to prepare the jury list, as provided for at s. 42 of the JurorsAct, CQLR c. J-2 (“s. 42 motion”).

[ 124 ] On January 15, 2014, the motion was presented to the Superior Court judge assigned to hear the trial. In his decision, he highlighted that the prosecution had supported the motion in a letter sent to him on December 13, 2013. The parties were aware that this motion, if granted, would delay the trial. Moreover, the prosecution, for its part, announced its intention to take advantage of this delay to rejoin the Cazzetta file, despite hesitations the judge expressed with respect to this plan. [ 125 ] The motion was thus granted on January 15, 2014 and the trial could not continue.

The trial judge was then named as the case management judge. The sheriff, for his part, was authorised to draw up a list of jury candidates pursuant to s. 42 and ordered to report back in 30 days. A variety of difficulties regarding the implementation of this order led to the sheriff’s work taking much longer than anticipated and, ultimately, never being completed: see R. v. Rice , 2016 QCCS 4507 , para. 6-7 . [ 126 ] I note that the motion judge mitigated the delay that followed.

After having weighed all of the circumstances surrounding this motion, he concluded that 7 months of delay should be attributed to the Rices, given the late presentation of the motion. [ 127 ] The time set aside for the trial was dedicated to other motions. [ 128 ] On January 16, 2014, the presentation of motions was suspended until February 2 for facilitation. The hearings would start again the next day and the motions were heard sequentially until February 17, 2014. The case management judge announced that he would take the motions under advisement.

Cazzetta [ 129 ] Proceeding in parallel with the Rices, on January 7, 2014 Cazzetta was on the roll. The appellant wished to follow the Rices’ file and the case was adjourned. Counsel for Cazzetta who, it should be remembered, was on leave, was represented by a lawyer who was ready to set a date for trial. But, as I mentioned, on January 15, 2014 the appellant announced its intention to join the files that had been separated. [ 130 ] On April 1, 2014, counsel for Cazzetta returned, ready to set a date.

However, the appellant wished to wait for the decisions in some of the Rice motions and asked that the case be adjourned. On May 6, 2014, the coordinating judge informed the parties that no date was available before February or March 2015. The appellant continued to indicate its intention to join the two trials. [ 131 ] On January 8, 2015, before the coordinating judge, a motion to join Cazzetta to the Rice file was presented. On this same day, the dates available for trial had been pushed back such that the Rices’ trial was set for January 9, 2017.

Because Cazzetta had not participated in any of the preliminary motions in the Rice trial, the two cases were not at the same stage. Faced with the announcement of a motion to join the files, the coordinating judge asked counsel for Cazzetta to block off the dates set for the Rices’ trial in her agenda until the motion was adjudicated. [ 132 ] On January 29, 2015, the trial was moved up to October 11, 2016. [ 133 ] Between these two dates, the motion for joinder was heard and dismissed.

Other motions were presented, and on March 10, 2016, the case management judge recused himself because an administrative reorganization of the prosecution’s office placed him in a conflict of interests because his wife would be joining the team responsible for the Rice and Cazzetta trials: R. c. Cazzetta , 2016 QCCS 1115 .

As the motion judge noted, this recusal had no impact on the delays because the case was quickly reassigned and the motions were heard as planned in order to prepare for the impending trial. [ 134 ] It was in this context that the motion judge granted the motions for a stay of proceedings presented by both the Rices and by Cazzetta. I will come back to the principle elements of these motions in analysing the issues on appeal. ISSUES [ 135 ] The appellant raises three identical grounds of appeal in the Rice and Cazzetta files, formulated in the following manner: [TRANSLATION]

(1) Did the motion judge err in law by failing to consider the delays attributable to the defence, both by waiver ( Jordan at para. 61 ) and by their conduct ( Jordan at para. 63, 65 ), notably with respect to the preliminary inquiry, the s. 42 motion and facilitation?

(2) Did the motion judge err in law by failing to consider, in whole and in part, the impact of discrete events ( Jordan at para 72 ), and the particularly complex nature of the case ( Jordan at para. 77, 80 ) on the delays?

(3) Did the motion judge err in law by refusing to apply the Jordan transitional measures (at paras 95-104)? [Emphasis in the original] [ 136 ] In its factum, the appellant draws very few distinctions between the Rice and Cazzetta files. I will therefore do so when necessary as I address various aspects of the analytical framework. An error in the attribution of delays in applying the analytical framework is a question of law, but this judicial exercise is undertaken with respect to findings of fact which are entitled to deference. 1) Total delay

[ 137 ] The motion judge concluded that the total delay was 89 months in the Rice case and, since Cazzetta’s trial was to be held shortly after, 94 months in that case. These conclusions are not contested. 2) Delay attributable to the defence [ 138 ] The appellant attributes all delays relating to the preliminary inquiry, the delays in relation to the s. 42 motion and the delays linked to facilitation to the Rices.

Without mentioning a word in this regard in its factum, the appellant also saddles the defence with the delay caused by the September 5, 2012 adjournment before the Superior Court which pushed the case back to the next judicial term in January. According to the appellant, the defence is responsible for 62 months of delay, leaving a delay of 27 months – below the established ceiling. [ 139 ] The appellant attributes all delays for the preliminary inquiry, the occasional facilitation efforts, and the adjournment with consent to Cazzetta.

Moreover, the illness and unavailability of Cazzetta’s lawyer, due to her involvement in another trial, would attribute another 23 months to the respondent. In total, the appellant asserts that Cazzetta should be responsible for nearly 54 months of delay. 2.1) The preliminary inquiry: Rice and Cazzetta [ 140 ] The appellant attributes all delays surrounding the preliminary inquiry to the respondents, being of the opinion that a full preliminary inquiry was useless, even while recognizing that some documents – the expert investigative forensic accounting reports – were disclosed late.

The appellant is of the view, however, that the respondents nevertheless had all the necessary information in hand, rendering the preliminary inquiry useless. [ 141 ] The respondents essentially plead that the delay in disclosing the expert reports is what led to the delays, because they did not want to waive their right to examine or cross-examine experts without having read the reports. The preliminary inquiry thus remained useful.

They note that the duration was reduced progressively after additional court appearances and disclosure of evidence. [ 142 ] The appellant fails to convince me that the judge erred in his analysis and attribution of the delays related to the preliminary inquiry, except for the two waived periods that I have mentioned. The motion judge’s decision is supported by the record and the parties’ submissions.

Consequently, it was open to him to conclude that the late disclosure of evidence motivated the defence decision to delay the preliminary inquiry. [ 143 ] Here I open a parentheses with respect to the disclosure of evidence – a recurrent problem in managing criminal matters. On one hand, the prosecution and those who assist it – voluntarily or not – may resist or fail to respect the duty to disclose anything that is not clearly irrelevant or otherwise recognized as being evidence that obviously should not be disclosed. This causes disputes that, too often, must be resolved before a judge.

On the other hand, an insatiable appetite for the most minute information that might be found in the prosecution’s files too often leads the defence to demand, as the motion judge so aptly remarked, everything down to the last scrap of paper before declaring itself satisfied. In this adversarial context, it must be remembered that something which seems of little importance is sometimes relevant to the defence and, as a corollary, given the low threshold of relevance in this context, what is relevant may not always be determinative.

The defence has the right to obtain this information and the prosecution has the obligation to disclose it. However, it is not because the defence has the right to obtain this information that it is determinative for the case and that an adjournment must be granted. Where possible, judges must consider the evidence obtained late or forthcoming in order to determine whether an adjournment is justified.

Within the boundaries of their professional obligations, counsel absolutely must collaborate at this important stage. [ 144 ] Late disclosure of evidence, even on the eve of a trial, does not necessarily mean that an adjournment will be granted if the nature of the evidence does not justify doing so: R. v. Mouchayleh , 2017 NSCA 51 , para. 30 . If the evidence is more substantial, such as an expert report, the result may differ.

In Pyrek , the report had been in police possession for some two years, but had not been disclosed to the prosecution or the defence, which is negligence attributable to the Crown, such that the delay caused by the adjournment could not be attributed to the defence: R. v. Pyrek , 2017 ONCA 476 , para. 19-21 ; see also R. v. D.A. , 2018 ONCA 96 , para. 16-17 , 21-22. [ 145 ] Also, unless the circumstances show, as they do here, that the disclosure of evidence incurred identifiable delays and slowed the proceedings, this should not slow the progress of the case.

It is not sufficient to invoke late disclosure of evidence as a reason for adjournment unless the significance of the evidence justifies doing so. Judges should be concerned about this. An adjournment granted without being necessary will be attributed to the defence: R. v. Khoury , 2016 QCCS 5009 , para. 13-17 and also R. c. Antoine , 2017 QCCS 1325 . Moreover, even if an adjournment is granted, the time that the court sets aside should be used to advance the case where possible: R. v.

Pyrek , 2017 ONCA 476 , para. 20 . [ 146 ] To come back to the prosecution’s argument that the respondents should shoulder all delays related to the preliminary inquiry, it would be shocking if the preliminary inquiry stage itself could be entirely attributed to the defence and thus deducted. This is not only a legitimate stage of proceedings provided for in the Criminal Code , but it also affects which ceiling is presumed to be reasonable. Special circumstances would have to exist to oblige the defence to carry this delay.

The motion judge did not exclude the notion that such situations may occur, but I am of the view that they will be rare. In the context of this case, the judge accepted what the respondents pled, namely that the duration of the preliminary inquiry varied according to the evidence disclosed. He noted that the appellant was not able to shed more light on these issues and concluded that the adjournments did not constitute illegitimate conduct. [ 147 ] In the end, the motion judge held that only a period of 6 months had been waived. As I have mentioned, there is an error here.

In fact, the file shows that there were three periods waived for a total of 18.5 months, or 12.5 months more than what the judge determined. 2.2) The s. 42 motion: Rice only [ 148 ] The appellant argues that the s. 42 motion delayed the trial and all delays flowing from it should be attributed to the respondents. A delay not of 7 months, as the judge held, but of 33 months should thus be attributed to the respondents. Once again, the appellant simply re-pleads the arguments it made before the motion judge without showing how the judge’s response is tarnished by a reviewable

error. [149] The motion judge noted that the proceeding was filed extremely late and that the respondents are not beyond reproach. For thisreason, he evaluated the delay caused by this negligent defence conduct. He considered that the delays flowing from a motion presentedshortly before the start of trial and impacting the ability to begin the trial could be attributed to the defence. He held that the motioncaused a delay of 7 months: the time between its presentation and the date when the Court was no longer available to hold the trial.

Herefused to hold the defence responsible for all the delays that followed the motion, as the appellant wished. The motion itself was notfrivolous since, as he noted, as had the case management judge in his decision, the appellant did not contest the motion. Moreover, evenif the defence should have known that the motion would lead to an adjournment of the trial, one cannot simply conclude that there hadbeen an implicit waiver of the 3 year delay that followed. [150] All agree that an infinite number of nuances can be made in characterizing and attributing responsibility for a delay.

If the judgeconsiders a delay, the Supreme Court urges courts of appeal to show deference. The vague nuances that the appellant makes, revisitingthe file in all its minutiae, have no place on appeal nor, for that matter, before the motion judge. A judge seized with a motion regardingdelay “must be careful not to miss the forest for the trees”: R. v. Vassell, 2016 SCC 26 , [2016] 1 S.C.R. 625, para. 3 and all themore so for an appeal court. [151] The judge relied on his experience to evaluate the legitimacy of a delay.

The appellant has shown no error that would warrantthe intervention of this Court. 2.3) Adjournments by consent: Rice and Cazzetta [152] A joint request for adjournment, made on September 5, 2012 at the beginning of the Superior Court’s judicial year, aftercommittal to trial, caused a delay of 4 months. According to the appellant, facilitation sessions also delayed the trial. [153] With respect to the first, the appellant has made no arguments in its factum to explain why this delay should be attributed to thedefence, but nevertheless attributes this delay to the defence in its computation.

Before the motion judge, the appellant conceded that theadjournment was by consent and that it should not be deducted. As for facilitation, the appellant is of the view that it suspends theproceedings and is equivalent to a waiver from the defence. According to the prosecution, a 15 month delay should be attributed to theRices and a little more than 2 months should be attributed to Cazzetta. [154] The motion judge did not deduct any delay flowing from these two factors. [155] In principle, consent from the prosecution does nothing to change the nature of a request for adjournment.

The delays arise fromthe adjournment, not from consent. What must be examined is the reason, the cause for the adjournment. [156] I note that the established ceilings are generous and leave room for delays necessary in preparing the trial. Preparation willnecessarily incur delays, but these are not always deducted. One might say that consent from the prosecution confirms the legitimacy ofthis sort of adjournment. That is what I understand with respect to the adjournment contemplated by this ground of appeal. No oneopposed the adjournment in the Superior Court.

It was not unusual at the time, and it made sense in the context of legitimate preparationfor the trial. [157] However, it is also clear that since Jordan, the parties are no longer the only ones who should be concerned about reasonabledelays in holding a trial. In the same spirit, judges should not permit the defence to push a trial back simply by “waiving” delays; toallow the parties the possibility of always withdrawing from the established ceilings “by consent” would ignore that victims and thecommunity expect more from the criminal justice system.

Judges must be vigilant, even with respect to adjournments by consent. [158] Both the prosecution and the defence have a duty and a responsibility to inform the judge of the real reasons for requesting anadjournment and they should not withhold information; this may also require that more complete explanations be given to allow judgesto evaluate the relevancy, utility and impact of the request: Dupuis c. R., 2016 QCCA 1930, para. 41. This also allows judges tounderstand the dynamics and progression of the case. If the request is granted, the judge may eventually attribute responsibility for thedelay it causes.

The precipitous granting of requests for adjournment “by consent” and their deduction from the ceilings detracts from thesense of relative urgency that should be present in all criminal matters. [159] It would be good judicial practice to note in the court minutes, or at least to verbalise, beyond the decision, short reasonsexplaining the circumstances of the requested adjournment. Counsel should so request and thus ensure that they understand the reasonsin support of the decision.

As I write, I am very well aware of the volume of cases before the criminal courts, particularly before theCourt of Quebec, which may make this task more onerous. I am reassured by signals indicating that shortages of resources are beingaddressed.

Nor would I wish to cast aspersions on the professionalism that fortunately characterizes the legal practice, but it must beadmitted that the passage of time, to say nothing of changes in counsel for both the defence and the prosecution, sometimes makes thingsmore difficult to remember. [160] Certainly “negotiations” or other reasons may motivate requests for adjournment “by consent”. If the adjournment has no realimpact on the case’s progression, particularly when the prosecution is not ready to go to trial, it is inappropriate to attribute the delay tothe defence: Guimont c.

R., 2017 QCCA 1754, para. 40. [161] If an adjournment by consent is granted and has a real impact on the progress of the case, there is no doubt that a judge will havelittle difficulty in concluding that there was implicit, if not explicit, waiver on the part of the defence concerning this portion of thedelay: Béliveau c. R., 2016 QCCA 1549, para. 114, D'Urso c. R., 2017 QCCQ 4706, para. 133.

The waiver may be clear, and does nothave to be verbalised, but ambiguity must be avoided. [162] Indeed, if neither the circumstances nor the file allow for a reason for the adjournment to be established or inferred, or if thecontext is ambiguous, or if the waiver is sometimes noted in the minutes and other times not, then consent on the part of the prosecutionmay well confirm the legitimacy of the adjournment. And, when in doubt, no delay may be deducted. It seems to me that this is the

context in which Guimont c. R. 2017 QCCA 1754 , para. 45-46 should be understood. [ 163 ] It will nevertheless fall to the judge to attribute the resulting delay, taking into account the moment when the request was made, the seriousness of the negotiations, previous requests for the same reason – in short, all of the circumstances. But it is not an error in principle to consider that the delay resulting from a request for an adjournment “by consent” is part of the general established ceilings. [ 164 ] Judges must ensure that this individual and collective constitutional right is respected.

To this end, judges may refuse adjournments “by consent” if they are of the opinion that the adjournment is unreasonable. The collective interest in trials being held within a reasonable period of time should not always give way to the parties’ wishes, even if it is possible to argue that the prosecution represents the public interest. [ 165 ] What’s more, experience shows that there is a clear advantage in requiring parties to ready themselves for trial.

A trial will be held once the parties are prepared and the cut-off date that the trial represents encourages preparation and sometimes even inspires alternative resolutions. 2.4) Facilitation: Rice and Cazzetta [ 166 ] Even if facilitation could be seen as an adjournment by consent of the parties and even if the delays incurred would not affect those established by the ceilings, facilitation is distinguishable because participation in facilitation should not, in principle, slow the progress and preparation of the case. [ 167 ] Facilitation in criminal matters is a process that has taken place in Quebec for many years.

It allows parties wishing to do so to go before a judge, otherwise a stranger to the case, and to present elements of the file that are blocking or hindering the progression of negotiations between the prosecution and the defence. By facilitating discussion and reflection this judge can shed new light on the matter. Since confidentiality is the cornerstone of this process, in principle, the trial judge or the case management judge is not informed that facilitation is taking place.

In fact, the process should never slow the case’s progress before the court, save in exceptional cases. [ 168 ] Time dedicated to facilitation in a trial court should not replace time dedicated to preparing for trial. If it does, the parties must necessarily indicate to the trial judge or the case management judge that they are participating in facilitation. The parties are encouraged to exercise the greatest caution before revealing that facilitation is taking place.

Even if it can be agreed that a judge is capable of making the proper distinctions after learning that facilitation is underway, it remains that the judge, who must also see to the proper progression of the case and respect reasonable delays, would be in a clearly disadvantageous position for reviewing the resulting delay, particularly because the judge can have no further knowledge of the facilitation process itself. [ 169 ] Clearly, if there must be facilitation, the parties should only rarely interrupt their preparation and the progression of the case. [ 170 ] Indeed, the parties may not uselessly monopolise a judge during negotiations, be it the trial judge or a case management judge.

Limited judicial resources simply do not permit this. Negotiation is always to be desired but, above all, criminal proceedings exist in order to hold trials. Following the logic that the ceilings presumed to be unreasonable have been set not only for the benefit of the parties, but also for that of victims and the community, there will necessarily come a time when it is too late to negotiate.

The parties should understand this from the beginning. [ 171 ] Where the facilitation process puts the brakes on the normal progression of a trial or preliminary proceedings, the parties will have to agree that the time set aside for this will be short and that the resulting delay will not be included in the ceilings established in Jordan .

From the point of view of the defence, there is waiver and the delay is attributable to the defence for the purposes of the calculations required by the analytical framework set out in Jordan . [ 172 ] Here, the file demonstrates that the parties found themselves back in facilitation after the January 15, 2014 decision on the s. 42 motion and that they asked to put argument on the other motions on hold. When the presentation of the motions began again on February 3, the two-week period during which the proceedings were suspended at the parties’ request should have been deducted.

A second round of facilitation, in the summer of 2016, had no impact on the start of the trial. [ 173 ] Thus, a period of two weeks, or 0.5 months should be deducted from the Rices. In the circumstances, however, this delay in itself has no impact and, moreover, it may well overlap with the delay which the judge had already attributed to the defence with respect to the events in the wake of the s. 42 motion. [ 174 ] For Cazzetta, a facilitation process was announced when the coordinating judge had informed the parties, several months prior, that the court would not be available before 2015.

Consequently, the time invested in facilitation had no impact on the start of the trial. 3) Exceptional circumstances 3.1) Discrete events: Rice [ 175 ] Before the motion judge, the appellant proposed that three discrete events had occurred in Rice: the late presentation of the s. 42 motion, the late presentation of a constitutional challenge and the recusal of the case management judge. [ 176 ] The judge explained why the two former events had no impact on the delays.

The constitutional challenge was in relation to two charges that had been separated and the recusal of the case management judge had no impact, the motion judge having taken on the case for trial. As for the first, the appellant qualified the s. 42 motion as a discrete event because it put the brakes on the Rice trial. [ 177 ] I am of the opinion that issues regarding defence proceedings are not, in principle, discrete events as contemplated by Jordan . Here, the delays were analysed by the motion judge, as it

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