2021 QCCA 981, 2021 QCCA 981

Papadopoulos c. Director of Criminal and Penal Prosecutions 2021 QCCA 981 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007252-198 ( 540-36-001049-195 ) MINUTES OF HEARING DATE: June 8, 2021 CORAM: THE HONOURABLE JACQUES CHAMBERLAND, J.A. GENEVIÈVE MARCOTTE, J.A. GUY COURNOYER, J.A.

APPELLANT COUNSEL Demetre Papadopoulos Mtre BENJAMIN WILNER Mtre MATTHEW SHADLEY ( Shadley Bien-Aimé ) By videoconference RESPONDENT COUNSEL Director of criminal and penal prosecutions Mtre ISABELLE MOREAU ( Director of criminal and penal prosecutions ) By videoconference On appeal from a judgment rendered on November 28 th , 2019 by the Honourable Mario Longpré of the Superior Court , District of Laval . NATURE OF THE APPEAL: Penal prosecution – Stay proceedings – Unreasonable delay. Clerk at the hearing : René Gutknecht Courtroom: Pierre-Basile-Mignault HEARING 9:30 Commencement of the hearing.

Identification of counsel. 9:31 Submissions by Mtre Wilner. 9:33 Discussion between the Court and Mtre Wilner.

9:54 Mtre Wilner resumes his submissions. 9:57 Question by the Court and response by Mtre Wilner. 10:01 Mtre Wilner resumes his submissions. 10:04 Recess of the hearing. 10:09 Resumption of the hearing. The Court exempt Mtre Moreau to submit her arguments. BY THE COURT: Judgment – see page 3. Conclusion of the hearing. René Gutknecht, Clerk at the hearing JUDGMENT [ 1 ] The appellant appeals a decision of the Superior Court (the Honorable Mr.

Justice Mario Longpré) which overturned the stay of proceedings entered by the trial judge because of a violation of his right to a speedy trial. [ 2 ] In a thorough and nuanced judgment, [1] the Superior Court came to the conclusion that the postponement of the trial due to the delay in securing, for cross-examination purposes, the transcript of the testimony of a prosecution witness rendered in a small claims court case (the witness was one of the plaintiffs against the appellant) was a discrete event under the Jordan framework. [ 3 ] The appellant was charged with an offence of having acted as a building contractor by performing work without a proper licence for that purpose.

The potential contradictions between the expected testimony of the witness for the prosecution and her testimony in small claims court in her case for damages against the appellant are not self-evident and were never clearly delineated. [ 4 ] Assuming relevance and the need for the transcripts, appellant’s counsel was fully aware on October 17, 2018 of the need to secure the services of a court stenographer privately to obtain the transcripts. [2] This is not a situation involving court-ordered transcripts under the Criminal Code , the Code of Penal Procedure or the relevant applicable rules of procedure. [ 5 ] Whether the situation is examined from the perspective of attributing the delay to the appellant or through the discrete event analysis, the delay resulting from the adjournment cannot be attributed to the Crown, the judicial system or the judge who, in his discretion, decided to adjourn the case in order to obtain the transcripts. [ 6 ] The Superior Court rightly concluded that, in the particular circumstances of this case, it was a discrete event. [ 7 ] Lest there be any doubt, an additional factor required the postponement of the trial: a last-minute request by the appellant to cross-examine the investigator who wrote the statement of offence under s. 62 of the Code of Penal Procedure .

While this was a legitimate defence request under Jordan , a delay of between one and two months was nevertheless rightly attributed to the appellant by the Superior Court. [3] [ 8 ] All in all, the appellant has not convinced us that the Superior Court erred in ordering a new trial and in its analysis of the overall situation in the particular circumstances of the case. [ 9 ] Obviously, the new trial should be prioritized and must be held as soon as possible. FOR THESE REASONS, THE COURT: [ 10 ] DISMISSES the appeal; [ 11 ] WITH COSTS. JACQUES CHAMBERLAND, J.A. GENEVIÈVE MARCOTTE, J.A.

GUY COURNOYER, J.A.