2013 QCCQ 858, 2013 QCCQ 858

R. c. Gunn 2013 QCCQ 858 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-044437-108 DATE: 6 February 2013 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor/Respondent v. Jennifer GUNN Accused/Applicant _____________________________________________________________________________ JUDGMENT (Charter, sections 11(

b) and 24(1)) _____________________________________________________________________________ [ 1 ] The parties agree that there has been institutional delay of twenty-one (21) months and twenty-one (21) days between the last date pro forma and the second trial date of 16 January 2013. The question raised under sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms [1] is whether this delay is unreasonable. This is not a case that involves waiver or dilatory conduct attributable to the defence or the prosecution. It involves the length of institutional delay and prejudice. [ 2 ] At the last hearing pro forma on 10 March 2011, a first date for trial was fixed for 16 February 2012. Shortly before that date, the prosecution advised the defence that if a particular witness testified the prosecution reserved the right to use a recorded telephone conversation in cross-examination of that witness.

When the case came for trial on 16 February 2012 the defence had a lingering concern whether it had received full disclosure of the recorded conversation. Although it was not then settled that the accused would call the proposed witness, the trial judge declined to proceed and invited the parties to obtain a second date for trial from the office of the coordinating judge. Through no fault of the prosecution or the defence, and through no fault of the coordinating judge, the court was unable to provide a second date before mid-December 2012 or mid-January 2013.

On 16 February 2012, a second trial date was fixed for 16 January 2013. The failure of the trial to proceed on 16 February 2012 and the inability of the court to provide an earlier second date for trial thus combined to guarantee institutional delay of twenty-one months and twenty-one days from the last pro forma date to the second date for trial. As announced by the defence on the first date for trial, a motion for unreasonable delay was presented at the second date for trial. [ 3 ] Ms. Gunn is charged with one count of threats [2] allegedly made in the course of a matrimonial disintegration.

The prosecution has proceeded summarily. At the hearing of this motion the parties confirmed that there is nothing to suggest that the case is complex.

As noted by the Supreme Court, prejudice to the accused cannot be separated from the length of the delay and the inference of prejudice will strengthen with increased institutional delay. [3] Among other considerations, there is necessarily a measure of prejudice to the interest of the accused in security of the person - "in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge." [4] Apart from inherent prejudice arising from the length of institutional delay, Ms.

Gunn also affirms the following factors as specific evidence of prejudice. • emotional stress • anxiety • sleep deprivation • lack of concentration • depression • loss of income

• financial stress • incurred debt • loss of quality of life • loss of family home • need for therapy • cost of lawyers • continuous harassment by [the complainant] • fear of losing custody of my daughters • living in fear of being convicted of a crime • fear of not being able to seek employment • fear of losing real estate license, volunteer licence, soccer coach license etc. due to a conviction • fear of not being able to cross the border for trips. [5] This enumeration is perhaps overstated, and even fulsome in some respects, but not without substance.

The prejudice inherent in the delay of almost twenty-two months is aggravated by several factors related directly to the criminal charge against Ms. Gunn - including the anxiety of unresolved jeopardy, the uncertainty of her professional vocation as a licensed real-estate agent and fear of travel restrictions. No specific evidence was led to demonstrate that Ms. Gunn's ability to make full answer and defence has been impaired.

But an unquantifiable risk of this kind ineluctably grows as delay is prolonged. [6] As the Court noted in Godin , "[p]roof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11 (

b) violation." [7] In this relatively straightforward case taken summarily, the inherent prejudice in lengthy institutional delay is compounded not only by several specific factors enumerated in the evidence on the motion but by a risk of further prejudice. Although "[i]t is difficult to assess the risk of prejudice to the appellant’s ability to make full answer and defence, [...] it is also important to bear in mind that the risk arises from delay to which the [Ms. Gunn] made virtually no contribution." [8] This is apparent in any case with contested evidence that is likely to turn on issues of credibility.

The net effect of these various considerations is not only a palpable measure of prejudice to the individual accused but prejudice to "the public interest in the fair and prompt administration of justice." [9] The effect of unreasonable delay is to bring the administration of justice into disrepute and, where this occurs, the remedy is not to exclude evidence but to exclude the case. [10] [ 4 ] Of course, there is no fixed rule for calculating unreasonable delay and attempts to approximate guidelines for the general run of cases are fraught with qualifications arising from the reasons for delay in individual cases.

The delay in this case certainly exceeds the guidelines proposed in Morin . [11] As recognised in the jurisprudence, there are four reasons that support the motion before the court. First, there is prejudice that would accrue to any accused person by virtue of lengthy institutional delay. Second, there is some evidence of specific and continuing prejudice to Ms. Gunn in view of her personal and professional circumstances while this case remains unresolved. Third, there is the certainty of future and aggravated prejudice if this case cannot be heard for at least another fourteen months.

Finally, as noted in Morin by McLachlin J. (as she then was), there is a generalised prejudice to the public interest in the fair and prompt administration of justice. [12] [ 5 ] In a straightforward case taken by way of

summary procedure, institutional delay of almost twenty-two months that is not attributable to the accused (or the prosecutor) is unreasonable and brings the administration of justice into disrepute. FOR THESE REASONS, the motion is granted and this case is herewith stayed. ____________________________________ PATRICK HEALY, J.C.Q. M e Emmanuelle Chabot For the prosecution M e Steven Slimovitch For Ms. Gunn Date of hearing: 16 January 2013