2014 QCCQ 11134, 2014 QCCQ 11134

JL4460 Campbell c. R. 2014 QCCQ 11134 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF GATINEAU TOWN OF GATINEAU Criminal and Penal Division No: 550-01-063694-121 DATE: November 14, 2014 ______________________________________________________________________ BY THE HONOURABLE GASTON PAUL LANGEVIN, J.C.Q. ______________________________________________________________________ TREVOR EARL CAMPBELL Accused/Applicant v.

HER MAJESTY THE QUEEN Respondent ______________________________________________________________________ JUDGEMENT ______________________________________________________________________ Introduction [ 1 ] The accused was arrested on March 30, 2012 and charged on May 24, 2012 of driving a motor vehicle while his ability to do so was unpaired by alcohol. [ 2 ] He was also charged of driving a motor vehicle while having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood. [ 3 ] On the trial date of September 9, 2014, the accused brought a motion to stay the proceedings pursuant to s. 24 (1) and 11 (

b) of the Charter, arguing that the 27 month/15 days delay period in bringing him to trial infringed on his right to be tried within a reasonable time. [ 4 ] I assess the entire period of delay in this case and attach great importance to the actions of the defence since these actions are the cause of a large portion of the delays. (11 months/15 days) [ 5 ] Furthermore, after reviewing all of the evidence, I find that the prejudice suffered by the accused is largely negated by the evidence. Mr. Campbell is a police officer.

The prejudice alleged is essentially that which occurs to anyone charged with a criminal offence and is not that of the delay itself. [ 6 ] The actions of the accused such as the request for disclosure, the application for additional C-2 material ( later abandoned), the consent of the accused to the numerous adjournments and finally the s. 11 (

b) application filled days prior to the trial, are all actions that are inconsistent with the accused desire for a timely trial. [ 7 ] Finally, I conclude that Crown and institutional delays are of 9 months. This period is within the time frame of 6 to 10 months put forth by the Supreme Court in Morin. [ 8 ] Accordingly, I conclude that the accused's 11 (

b) right to a speedy trial was not infringed and that there is no unreasonable delay in scheduling his trial. The Law [ 9 ] The period of delay to be scrutinized is the time elapsed from the date of the charge to the end of the trial 1 .

[ 10 ] The date of the charge means the date on which an information is sworn 2 . [ 11 ] The factors to be considered in analysing the delays pursuant to a

section 11(

b) application may be listed as follows, 1) The length of the delay; 2) The waiver time periods; 3) The reasons for the delay, including

a) Inherent time requirements of the case

b) Actions of the accused

c) Actions of the Crown

d) Limits on constitutional resources and

e) Other reasons for delay 4) The prejudice to the accused 3 [ 12 ] Inaction or agreement on the part of the defence to postpone the matter to another date should not be interpreted as forfeiture of an accused's 11 (

b) rights. There is no obligation on the part of the accused to press the case on. Inaction or acquiescence on the part of the defence will nonetheless be taken into account in assessing the accused's eagerness to stand trial. In some circumstances, agreement to future dates, added to other actions of the accused may lead to the conclusion that an accused did waive his s. 11 (

b) rights 4 . Length of Time [ 13 ] An inquiry into unreasonable delay should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness 5 . In the case at hand, the total delay period, between the moment the respondent was charged and the date of the

section 11(

b) hearing is of 27 months and 15 days. I consider that this period is sufficiently long as to raise the issue of reasonableness. Waiver of Time [ 14 ] Parties agree that the respondent did not waive clearly and unequivocally at any moment his rights under

section 11 (b) 6 . However, it is to be noted that defence agreed to most if not all of the adjournments requested by the Crown. ________________________________ Reasons for Delay May 24, 2012 to November 15, 2012 [ 15 ] Defence appeared for the accused on July 6, 2012. The case was postponed to allow defence counsel to review the evidence disclosed to him on that day.

Defence later filed a disclosure request letter on September 25, 2012. [ 16 ] It is worth noting that the defence request for additional disclosure was received by the Crown only on November 15, as the disclosure request was not sent to the Crown’s office but was sent to the clerk's office. [ 17 ] This mistake caused a further delay since the Crown was not informed of the disclosure request until November 15, 2012.

Therefore Crown was compelled to ask for an adjournment and defence agreed. [ 18 ] The party who causes an adjournment is responsible for the entire delay until the matter can be re-scheduled, unless the other party is unavailable for an unreasonable length of time 7 . [ 19 ] Consequently, I would allow the period (2 months/19 days) from May 24, 2012 to September 25, 2012 as an inherent period [ 20 ] However, I conclude that defence is responsible for the delay period (1 month/20days) from September 25, 2012 to November 15, 2012 and therefore attribute this period to the defence.

November 15, 2012 to February 13, 2013 [ 21 ] The defence submits that the entire period (3 months less 2 days) should be assessed as Crown delay, arguing that this case is not complex nor will it involve a lengthy trial. The defence further argues that, since the May 12008, it is the Crown's duty to comply with extended disclosure obligations following the

section 258 amendments.

[ 22 ] The Crown argues that it has disclosed material that it considered to be relevant in the light of these amendments. Furthermore, the Crown submits that the law pertaining to the extent of the C-2 material to be disclosed has yet to be determined by the case law. [ 23 ] Consequently, the case was adjourned to December 13, 2012 with the consent of the defence.

On December 13, 2012 agent for counsel for the defence agreed to postpone the case further to February 13, 2013. _____________________________________ [ 24 ] Thus at that time defence counsel seemed satisfied that this period was inherent to the case given the fact that the Crown had to respond to the latest disclosure request. I conclude therefore that this delay period (3 months less 2 days) is inherent to the case. February 13, 2013 to July 25, 2013 [ 25 ] On February 13, 2013 an agent represented defence counsel.

At this time, defence made no statement as to the accused's eagerness to stand trial. [ 26 ] It is noteworthy that agent for defence counsel received no instructions from defence counsel.

Agent for defence counsel relied on the Crown’s statement before the Court as to defence’s intention to agree to a further adjournment as the disclosure material was not yet available. [ 27 ] On May 6, the case was postponed further to June 20 and then even further to July 17 and finally to July 25 at the request of the Crown as more time was needed to obtain and transmit the disclosure material requested. [ 28 ] Defence counsel was represented by an agent on these dates.

Agent for defence counsel agreed to the remands and was content to underline that the delays were due to an outstanding disclosure request. [ 29 ] On July 25, Crown counsel stated that all the outstanding disclosure material had been fully and completely disclosed to defence counsel. [ 30 ] In considering the explanations for the delay, account must be made of the actions taken by the defence. Each case has its own inherent time requirement in the light of the actions taken by the defence and of the Crown’s attitude towards these actions.

Justice Sopinka discussed this matter in length in Morin 8 . [ 31 ] This aspect of the reasons for the delay should not be read as putting the blame on the accused for certain portions of the delay 9 . This should not be read as an indication that defence should sacrifice all preliminary procedures and strategy 10 .

Actions such as change of venue, attacks on search warrants 11 and as in this matter , disclosure requests for extensive C-2 material are examples of voluntary actions from the defence that explain the delay and turn a simple case into a considerably complex one. [ 32 ] If the accused chooses to take such actions this will be taken into account in determining what length of delay is reasonable. An accused person should not be able to generate a basis of a

section 11(

b) application by making lengthy requests for additional disclosure especially when the material has no potential relevance 12 . Any delay that results should not be attributed to the Crown. [ 33 ] In this matter, the material requested by the defence is relevant and the Crown needed time to gather, process and transmit the information to defence counsel. It is to be noted that the greater part of the material requested by the defence was triggered by the

section 258 amendments of 2008 and the Supreme Court decision in St-Onge-Lamoureux, rendered in November 2012. [ 34 ] It is noteworthy that the extent and the nature of the material to be disclosed has yet to be identified by the courts. In the meantime, a great many disclosure requests and applications are being transmitted to the Crown and argued before the courts across Canada.

This situation is putting great strain on the institutional resources, the Crown staff and the police authorities. [ 35 ] Nonetheless, the Crown is responsible for bringing an accused person to trial and to see that he receives all relevant disclosure in a reasonable time 13 . The Crown bears the burden of explaining unusual delays. [ 36 ] The Crown explained in general terms that it was overwhelmed by numerous C-2 disclosure requests but did not offer any specific evidence as to the extent and complexity of these requests.

No evidence was tendered as to the time and manpower needed to manage these requests. [ 37 ] It took the Crown 8 months to finally disclose all the material requested by defence. This delay is unacceptable in the circumstances of this case. [ 38 ] Considering what I have already said, I conclude that the time necessary to obtain the material requested by the defence from February 13, 2013 to July 25, 2013 is attributable to the Crown (5 months/12 days). July 25, 2013 to November 29, 2013 [ 39 ] On July 25, 2013, Crown counsel stated that all the items requested by the defence had been disclosed.

Agent for defence counsel was not informed of this. On the contrary, agent for the defence was instructed to set a date for a disclosure application. The Crown argued that disclosure had been completed and therefore the parties agreed to set a date of trial. At this time the Crown was not expecting to receive a disclosure application since everything that defence had requested had been disclosed.

[ 40 ] The agent indicated that defence counsel was available starting Sept 2, 2013 but Crown counsel was not available. The Crown offered October 9, 2013 but defence was not available. Finally the parties agreed to the date of November 29, 2013. [ 41 ] Defence acknowledges it is responsible for the delay from July 25 to September 2, 2013 and submits that the delay for the period from September 2, to November 29 is institutional. [ 42 ] I disagree. Scheduling requires reasonable availability and reasonable co-operation. It does not for s. 11(

b) purposes require defence counsel to hold themselves in a state of perpetual availability 14 . The same is true for Crown counsel. Defence cannot expect Crown counsel to be promptly available on the first date it offered. In this case, Crown was available in reasonable time. [ 43 ] Accordingly, I would attribute the 2 months/14 days period from July 25 to October 9, 2013 to the defence. [ 44 ] I would allow the period (1 month/20 days) from October 9 to November 29, 2013 as an institutional delay period.

November 29 th , 2013 to January 31 st , 2014 [ 45 ] As it turned out, the case did not proceed on November 29, 2013. Defence filed a disclosure application just days prior to the trial, requesting additional C-2 material that had not been requested in the past.

Consequently Crown and defence agreed to postpone the case to January 17, 2014. [ 46 ] The matter was adjourned further at the request of the defence to January 31 st , 2014 pending a relevant decision of the Court of Québec concerning the extent and nature of the C-2 material to be disclosed in similar cases. [ 47 ] The trial set on November 29, 2013 was adjourned because of defence's lax approach to disclosure. Defence made a late application for new C-2 material.

Any delay that result should therefore be attributed to the defence. [ 48 ] Accordingly I would attribute the (2 months and 2 days) period from November 29, 2013 to January 31, 2014 to the defence. January 31, 2014 to June 9, 2014 [ 49 ] On January 31, 2014 agent for the defence was instructed to set a trial date. Defence was available starting April 10, 2014.

Agent for defence counsel agreed to the first available date offered that of June 9, 2014. [ 50 ] I will attribute the period (2 months/10 days) from January 31, 2014 to April 10, 2014 to the defence. [ 51 ] The 2 months period from April 10 th to June 9 th , 2014 will be considered as institutional delay. [ 52 ] It is worth noting that defence counsel abandoned the C-2 disclosure application that was pending on the eve of the trial set for June 9, 2014. June 9, 2014 to September 9, 2014 [ 53 ] Once again the case did not proceed on June 9, 2014. Three weeks before the trial defence forwarded to the Crown an 11(

b) application. The Crown solicited an adjournment and the defence agreed. It is worth noting that the transcripts in support of defence's 11(

b) application were not yet available at this time. Defence was therefore in no position to proceed on June 9, 2014. [ 54 ] The accused seeks to avoid responsibility for this delay. Defence submits that it had requested the transcripts from the clerk’s office as early as March 14, 2014. The transcripts were not made readily available. [ 55 ] On May 15, Defence communicated with the Crown by email in these terms, « I had ordered transcripts through the clerk's office, but haven’t received any as of yet.

Do they record the Court proceedings at that Court house? » 15 . [ 56 ] It is rather surprising that defence had not yet inquired as to the proper procedures to follow in order to obtain the transcripts it needed in a timely manner. It is surprising to note that defence had not yet seeked advice on this matter before! [ 57 ] As it turned out, the transcripts were properly requested on May 27, and were made available to defence on June 6, 2014, some 3 days before the trial. Defence counsel took possession of the transcripts on June 9. The case was adjourned to June 13 with the consent of the defence.

On June 13 agent for the defence advised the Court that it was the accused's intention to file an 11(

b) application. The case was once again remanded to June 20, 2014 with defence's consent. Finally on June 20 a trial date was set to September 9, 2014. [ 58 ] Crown counsel submits that the delay period from June 9 to September 9 should be attributed to the defence because of its lax approach once again in obtaining the transcripts in time to proceed on June 9. [ 59 ] I agree. Defence is responsible for the entire delay. It was defence's responsibility to see that it had the proper material in order to proceed on June 9.

Defence was content with sending a letter at the clerk’s office requesting the transcripts without enquiring further on the basic procedures to be followed. Is there recording in the courthouse in Gatineau? What are the fees? Is a deposit necessary? Does defence counsel or his agent need to fill out a proper request? What is the delay involved? [ 60 ] All these questions could have been easily answered by local lawyers that acted as agents for defence council on numerous occasions in this file. Obviously defence failed to make the basic and elementary inquires that one would expect in the circumstances.

[ 61 ] Accordingly, I will attribute the period (3 months) from June 9 to September 9, 2014 to the defence. Results of chronological analysis [ 62 ] I would break down the 27 months/15 days as follows: A- Inherent delays: 7 months/less1 day B- Accused delays: 11 months/15 days C- Crown delays: 5months/12 days D- Institutional delays: 3 months/19 days [ 63 ] The delays attributed to the defence are due essentially to defence’s request for disclosure, defence’s late disclosure application and the s. 11 (

b) application initially intended to proceed on June 9 but postponed to September 9 due to defence’s inability to obtain the transcript in due time. [ 64 ] This is not a question of putting the blame on the accused but the defence did choose to take preliminary procedures and were late in some occasions in forwarding such procedures to the Crown.

This must be taken into account in determining the reasonableness of the delay. [ 65 ] The Crown delays are due to its inability to respond to the disclosure request in a timely manner. [ 66 ] Altogether Crown and institutional delays add up to a period of 9 months which is within the time frame of 6 to 10 months put forth by the Supreme Court in Morin. [ 67 ] Nonetheless, I would like to address the question of the prejudice suffered by the accused in these proceedings. Prejudice [ 68 ] In Morin, Sopinka J. determined that prejudice to the accused may be inferred from the length of the delay.

The longer the delay the more likely that such an inference will be drawn 16 . However, after stating this, he went on further to underline the fact that an accused is often not interested in exercising the right bestowed to him by s. 11(b). This right must be interpreted in a manner which recognizes the abuse which may be invoked by the accused 17 .

Action or non action by the accused which is inconsistent with a desire for a timely trial is something that the Court must consider. [ 69 ] It is noteworthy in this case, that it took defence 4 months before requesting additional disclosure material since the letter requesting such material was sent to the clerk’s office and not to the Crown. This caused an adjournment. [ 70 ] Furthermore, a motion for disclosure requesting new C-2 material was forwarded to the Crown a few days prior to the trial of November 29 engendering another adjournment.

This motion was ultimately abandoned by defence before the trial set on June 9, 2014. [ 71 ] It is also worth noting that, 3 weeks prior to the June 9 th trial, defence sent an 11(

b) application to the Crown and was not ready to proceed on that date due to defence negligence in obtaining the transcripts in due time to proceed. This caused another adjournment. [ 72 ] Lastly, all along the defence seemed content with the pace in which things were proceeding. Defence agreed to most if not all the adjournments. [ 73 ] The accused filed an affidavit (R-6) as evidence of the prejudice he suffered from the delays in the proceeding. The accused is a trained police officer. He asserts that he was subjected to considerable stress arising out of the charges laid against him.

He seeked professional assistance to cope with the adverse anxiety in anticipation of the trial. His career is on hold. He is unable to make decisions about his future and questions what effect these charges will have on his employment. He is prohibited from applying for promotions or any lateral job posting. However, disciplinary measures were suspended until the criminal charges could be dealt with. A conviction would be very impactful on his career. __________________ [ 74 ] Clearly, the prejudice thus encountered is not the result of the impugned delays but of the fact of the charges themselves. The s.11 (

b) protection is against prejudice arising from the delay of processing or disposing of the charges against an accused and not prejudices arising from the fact that he has been charged 18 . [ 75 ] The final observation relevant to assessing the prejudice is the fact that the accused was not submitted to strict bail conditions.

He was released on a recognizance and was present in Court only three times as he was represented by defence counsel or his agent on the other occasions. [ 76 ] Furthermore, there is no evidence to suggest that the accused ability to make full answer and defence was impaired because of the delay. [ 77 ] In weighing all the evidence and taking account of the stress and anxiety suffered by the accused, I would conclude that defence has failed to establish a sufficiently serious prejudice that would command a stay of proceeding.

Evidence is to the affect that prejudice is due to the possible out-come of the trial and not the delays as such.

Conclusion For these reasons I conclude that the accused s. 11(

b) rights were not infringed and that there was no unreasonable delay in scheduling his trial. Accordingly the motion is dismissed _____________________________ Gaston Paul Langevin, J.C.Q. Stéphane Rolland Crown Attorney Harval Bassi Defence Attorney Date of hearing : September 9, 2014 ________________________________