2018 QCCA 197, 2018 QCCA 197

R. c. Thanabalasingham 2018 QCCA 197 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006410-177 (500-01-077003-124) 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. SIVALOGANATHAN THANABALASINGHAM RESPONDENT – Accused and DANIEL MARTIN BELLEMARE INTERVENER JUDGMENT [ 1 ] On appeal from a judgment of the Superior Court, District of Montreal (the Honourable Mr.

Justice Alexandre Boucher), rendered on April 6, 2017, which ordered a stay of proceedings against the respondent. [ 2 ] For the reasons of Hilton, J.A., with which Morissette, Gagnon and Vauclair, JJ.A. concur. THE COURT: [ 3 ] DISMISSES the appeal as being moot. [ 4 ] For her part and for other reasons, Duval Hesler, C.J.Q. would have allowed the appeal, annulled and rescinded the stay of proceedings, and ordered a trial in the event the respondent ever returned to Canada. 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 Christian Jarry Mtre Maude Payette Mtre Nicolas Abran Directeur des poursuites criminelles et pénales For appellant Mtre Marie-Hélène Giroux Monterosso Giroux Lamoureux Avocats For respondent Daniel Martin Bellemare In person Date of hearing: September 14, 2017 REASONS OF HILTON, J.A. [ 5 ] This Crown appeal is from a judgment of Boucher, J. [1] that granted a stay of proceedings to the respondent Sivaloganathan Thanabalasingham for unreasonable delay in bringing his case to trial based on s. 11(

b) of the Canadian Charter and the judgment of the Supreme Court of Canada in R. v. Jordan . [2] It nevertheless raises preliminary questions as to whether the appeal has become moot and, if so, whether the Court should exercise its discretionary power to adjudicate the appeal as if it were not moot. In order to appreciate the circumstances that give rise to these questions, it is important to set out the sequence of events that occurred both prior and subsequent to the judgment under appeal. [ 6 ] The respondent’s status in Canada was that of a refugee from Sri Lanka.

He became a permanent resident of Canada on February 24, 2007. [3] [ 7 ] Since his arrival in Canada, he was frequently charged with a variety of offences related to assaulting his wife, which inevitably led to his being released from custody on conditions while awaiting trial. On one last occasion, however, a trial judge refused to release him. This led to the respondent pleading guilty to the then pending offences, which however were reduced from indictable offences to

summary conviction offences. The Quebec Court judge agreed to release him while awaiting the preparation of a sentencing report based on the testimony of the respondent’s wife, who favoured his release, as well as the consent of Crown counsel.

The only constraints placed on the respondent were to live at a specified address, to continue his anger-management therapy, and to abstain from possessing or carrying a long list of weapons (including knives) except for work purposes. [ 8 ] The respondent’s release on June 29, 2012 proved to be the precursor to the death of his wife. [ 9 ] On August 11, 2012, she was found dead in the couple’s apartment. The respondent brought her life to an end by inflicting wounds to her neck with a knife.

He was arrested upon the arrival of police officers, and charged with second-degree murder shortly thereafter. [ 10 ] The judgment of the Superior Court granting the respondent’s 109-paragraph motion for a stay of proceedings dated March 3, 2017 was rendered on April 6, 2017. The respondent would ordinarily have been released from custody since there were no other charges pending against him.

Instead, he was detained for immigration purposes the same day for two reasons: first, he was likely to represent a danger to society, and second, he was considered a flight risk to avoid removal from Canada. [4] [ 11 ] In this respect, it is important to emphasize the limited purposes of an immigration detention such as the one to which the respondent was subject. They are not broad or all-encompassing, as the Court of Appeal for Ontario held in Chaudhary v.

Canada (Public Safety and Emergency Preparedness) , and “must be for an immigration-related purpose: to detain someone under the IRPA ( Immigration and Refugee Protection Act ), an immigration officer must have reasonable grounds to believe the individual is … unlikely to appear for an examination, an admissibility hearing, removal or a proceeding that could lead to a removal order” . [5] Indeed, as Chaudhary shows, an illegal immigration detention can lead to successful habeas corpus proceedings in provincial superior courts. [ 12 ] The respondent could therefore not have been legally detained indefinitely by immigration authorities for reasons unrelated to his immigration status, irrespective of this appeal. [ 13 ] Three days after the judgment of the Superior Court under appeal, a deportation order was issued against the respondent on April 10 pursuant to para. 36(1)(

a) of the Immigration and Protection of Refugees Act . [6] On April 13, a detention review hearing took place, at which time it was mentioned that the Crown had elected to appeal the judgment of Boucher, J. to this Court. [7] Much of the resulting decision, which confirms the detention order, canvasses the respondent’s history of spousal violence in the context of a danger assessment and his non-respect of conditions of release from custody. [ 14 ] A further detention review hearing mandated by law took place on May 11.

The resulting decision notes that the respondent “wanted to leave Canada as soon as possible” and to withdraw his appeal of the deportation order. [8] He is further recorded as saying that he no longer needed Canada’s protection as a refugee, that he wanted to leave Canada as soon as possible and that he did not fear returning to Sri Lanka. The decision nevertheless maintained the respondent’s detention in light of his history of violence, while acknowledging that efforts would be undertaken to expedite his removal from Canada, and in particular the need to secure an appropriate

travel document for him. [ 15 ] Yet another review decision was rendered on June 9. It confirmed that the respondent sought to be removed from Canada, and that Canadian authorities were collaborating with the High Commission of Sri Lanka to provide him with an appropriate travel document. In the interim, he was to remain detained.

Nevertheless, his removal was considered to be “most likely [to] happen in the very near future”. [9] [ 16 ] It is not disputed that the respondent was removed from Canada to Sri Lanka on July 5. [ 17 ] In light of the respondent’s removal from Canada, the fact that Canada does not have an extradition treaty with Sri Lanka, and that if the respondent ever sought to enter Canada again he would require prior approval to do so pursuant to s. 52 of the Act , [10] at the close of the hearing of the respondent’s appeal, the Court advised counsel for both parties that they would be requested to respond in writing to the following questions:

(1) Had the Crown’s appeal seeking an order for a new trial become moot?

(2) In the affirmative:

a) Why should the Court exercise its discretion to adjudicate the appeal as framed? and,

b) If the Court decides not to exercise its aforesaid discretion, should the Court’s formal order: (

i) dismiss the appeal, or (ii) adopt some other measure that counsel could propose?

(3) In the negative, why is the appeal not moot? [ 18 ] Counsel for both parties were unanimous in their conclusions that the appeal was not moot, but that in any event there were exceptional circumstances justifying a judgment from the Court on the merits. Neither counsel, however, identified any specific exceptional circumstances on which they relied.

They did not respond to the request from the Court that they propose a formal order in the event the Court concluded that the appeal was moot, and that it would not exercise its discretion to decide the appeal on the merits. [ 19 ] Counsel for the Crown began his submission by noting that while it was true that Canada did not currently have an extradition treaty with Sri Lanka, nothing showed that the two countries might not in the future become extradition partners.

In such an eventuality, the respondent would become susceptible to being extradited for alleged offences that occurred prior to the coming into force of the treaty pursuant to s. 6 of the Extradition Act . [11] Even in the absence of an extradition treaty, counsel noted that a specific agreement could be entered into under subsection 10(1) of the Act “with a State (such as Sri Lanka) for the purpose of giving effect to a request for extradition in a particular case,” which included within its ambit “conduct or conviction” which occurred “before the relevant … specific agreement came into force.” [ 20 ] Counsel thus concludes that even if the respondent were to remain in Sri Lanka in the future, he still remains susceptible to extradition to Canada. [ 21 ] In addition, counsel submits that if the Court were to order a new trial on the merits of the Crown’s appeal and the respondent were to leave Sri Lanka and be found in a country with which Canada has an extradition treaty (for example neighbouring India), a request for the respondent’s arrest could be forwarded to such country and the extradition process then initiated. [ 22 ] All of these hypotheses, counsel argues, distinguish the respondent’s case from that of a deceased accused. [ 23 ] Finally, counsel contends, without any specificity, that the exceptional circumstances described by the Supreme Court of Canada in R. v.

Smith [12] are present in the instant case, and that the appeal has already been fully argued on the merits. [ 24 ] I note that the submissions I have just described contradict what counsel for the Crown argued in a motion dated June 21, 2017 to obtain a preferential hearing of the appeal.

After setting out the sequence of events I have mentioned in paragraphs [13] to [15], and the fact that the Minister of Citizenship and Immigration had the power to order the stay of a removal order for the period of time the Minister determined, with the result that the respondent’s actual removal on July 5 was not a certainty, counsel for the Crown alleged the following: 17.

Par ailleurs, si l’intimé devait regagner le Sri Lanka, aucune mesure coercitive de retour au Canada ne pourrait être envisage, le Canada et le Sri Lanka n’étant pas des partenaires d’extradition; [ 25 ] Counsel for the respondent agreed with the appellant’s most recent submissions. She essentially simply restated his principal arguments concerning the theoretical possibility of extradition and the applicability of the exceptional circumstances justifying the Court adjudicating an appeal that is moot.

The effect of her position is that her client should be exposed to the possibility of being returned to Canada against his will and becoming subject to a trial for second-degree murder if the Court were to allow the Crown’s appeal and reverse the judgment of the Superior Court that she was successful in obtaining on his behalf. [13] [ 26 ] With respect, in my opinion none of the reasons put forward by counsel justifies the Court adjudicating this appeal on the merits.

Rather, a review of the applicable case law in which such issues are considered shows both that the appeal is moot and that there are no valid reasons why the Court should exercise its discretion to adjudicate the appeal. [ 27 ] The leading case from the Supreme Court of Canada that remains the basis on which subsequent judgments from that Court have been based is Borowski v. Canada (Attorney General) . [14] The appellant had sought a declaration that ss. 251(4) (5) and

(6) Cr.C . (as they then existed) were contrary to ss. 7 and 15 of the Canadian Charter inasmuch as they denied the equality rights of a foetus as a

person. After the judgment of the Saskatchewan Court of Appeal rejecting the appellant’s contentions, but prior to Borowski’s case reaching the Supreme Court, it had already declared s. 251 Cr.C. to be invalid in R. v. Morgentaler (No. 2) . [15] It accordingly dismissed Borowski’s appeal on the basis that it had become moot. [ 28 ] Writing on behalf of the Court, Sopinka, J. noted that there was no longer a “live issue” between the parties inasmuch as the “substratum of Mr. Borowski’s appeal has disappeared”.

He added that a “controversy may disappear rendering an issue moot for a variety of reasons.” [16] He then went on to consider the criteria that govern whether the Court should exercise its discretion to hear or not to hear an appeal it considered to be moot. [ 29 ] These factors to be weighed were described as follows: • the continuation of an adversarial context between the parties for which there may be collateral consequences; [17] • concern for judicial economy – the decision to be rendered would have to have some practical effect on the rights of the parties despite the decision not deciding the controversy the case raises; [18] • consideration of whether the case is one of a recurring nature to ensure that important issues “do not evade review”, however, where such an issue may arise frequently “should not be a reason for hearing an appeal which is moot”; [19] [ 30 ] In this context, Sopinka, J. gave Re Opposition by Quebec to a Resolution to amend the Constitution [20] as an example of the Court declining to exercise its discretion.

In that case, the impugned challenge had become moot by the very occurrence of the amendment of the Constitution the Quebec government’s appeal opposed. [21] [ 31 ] Since Borowski , the Supreme Court has had the occasion to consider the issue of mootness in other cases. [ 32 ] In Tremblay v.

Daigle , the Court decided to continue with the hearing of an appeal relating to whether an injunction could properly lie to prevent Ms Daigle from having an abortion despite the Court having been informed after the luncheon recess that she had in fact already undergone the procedure. [22] The judgment does not elaborate on the issue of mootness but it is easy to see that the particular issue raised was not one that would be likely to appear before the courts with any frequency, and that it was considered important as a matter of principle to reverse the judgments in the courts below that had issued the injunctive relief at the request of the putative father. [ 33 ] The Court declined to hear an appeal in the case of R. v.

Smith [23] in circumstances where Mr. Smith, having been convicted of second-degree murder in 1985, passed away in 1994 before his appeal to the Court of Appeal for Newfoundland and Labrador could be heard. In 2004, the Crown applied to abate the appeal (i.e. obtain its dismissal for reasons unrelated to the merits). The Newfoundland and Labrador appellate court held that it retained jurisdiction to entertain the appeal despite Mr. Smith’s death but elected not to do so.

It therefore struck the notice of appeal. [24] [ 34 ] In dismissing the appeal to the Supreme Court of Canada, Binnie, J. observed that while a court “retains jurisdiction to proceed in the interests of justice…it is a jurisdiction that should be exercised sparingly.” [25] He then went on to consider the circumstances in which a court could consider the merits of an appeal that was otherwise moot, and summarized his conclusions as follows: [26] 50 In

summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive.

Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances: 1. whether the appeal will proceed in a proper adversarial context; 2. the strength of the grounds of the appeal; 3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including: (

a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review; (

b) a systemic issue related to the administration of justice; (

c) collateral consequences to the family of the deceased or to other interested persons or to the public; 4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal; 5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free- standing, legislative-type pronouncements more properly left to the legislature itself. 51 What is necessary is that, at the end of the day, the court weigh up the different factors relevant to a particular appeal, some of which may favour continuation and others not, to determine whether in the particular case, notwithstanding the general rule favouring abatement, it is in the interests of justice to proceed. [ 35 ] In examining these criteria, the Court found that there was an adequate adversarial context, and that there were serious grounds of appeal to the extent an appellate court might have found there was a basis to order a new trial owing to the admission of improperly obtained inculpatory statements of the accused.

Nevertheless, on first impression there were no special circumstances such as an apparent miscarriage of justice despite the extensive delay in bringing the appeal forward, since it would not be within the purview of an appellate court to “get to the bottom” of such delays. Moreover, there were no broader issues of public importance justifying a hearing on the

merits. As far as the investment of judicial resources is concerned, it was noted that if an appeal were to be heard and it was allowed, the proper order would be for a new trial, which had become impossible. Unfortunately, the stigma of having been charged with murder would nevertheless mean that Mr. Smith’s name could never be cleared. [ 36 ] More recently, the Court examined whether to consider an appeal that had become moot in R. v.

Oland . [27] There, both a chambers judge (Richard, J.A.) and then a panel of the New Brunswick Court of Appeal had denied bail to an appellant convicted of second-degree murder during the conduct of his appeal based on the “public interest” criterion of s. 679(3)(

c) Cr.C . Richard, J.A. held that while the appellant raised arguable grounds of appeal and that his release would not endanger public safety, the gravity and brutality of the offence were such that public confidence in the administration of justice would not be maintained if he were to be released. [28] [ 37 ] An application to review the judgment to a three-judge panel of the Court was dismissed on the basis that no error of law had been shown, [29] but leave was granted to the Supreme Court.

Prior to the hearing in the Supreme Court, however, the merits of Oland’s appeal were heard in the New Brunswick Court of Appeal and a new trial was ordered. [30] The issue of the criteria for releasing a convicted appellant during the pendency of an appeal thus became moot in Mr. Oland’s case. [ 38 ] The Supreme Court nevertheless elected to exercise its discretion to hear the appeal in light of conflicting jurisprudence on the subject of bail review in provincial courts of appeal, and the fact that the same situation might well arise again if Mr.

Oland were to be convicted at his new trial and again sought to be released during an appeal. [31] [ 39 ] In our Court, when faced with a leave application that raises an issue that has been rendered moot, the practice of judges has been to dismiss them. [32] [ 40 ] With respect to cases on the merits, there are examples of appeals being dismissed because they have become moot, and another where despite the death of an accused in a criminal case, the Court adjudicated the appeal because there remained a live issue to decide relating to the consequences of the conviction. [ 41 ] In Small v.

R. , the accused appealed a Superior Court judgment ordering a new trial on the

summary conviction offence of assault following his acquittal in the Municipal Court of Montreal. The legal issue raised in appeal had to do with the means by which Mr. Small had been identified as the author of the assault, namely by police photographs taken of him in 2001 for an offence for which he was subsequently acquitted. [33] To the knowledge of his counsel in 2001, the Montreal police force had a policy of systematically destroying the files of any individual who had been acquitted. This policy had not been followed in Mr.

Small’s case, and he therefore contended that the failure to have done so violated his rights under ss. 7 and 8 of the Canadian Charter . The trial judge precluded the identification of Mr. Small through the use of the photo from his earlier arrest, with the result that he was acquitted. The Crown’s appeal to the Superior Court succeeded on the basis that Mr. Small’s Charter rights had not been violated as he contended. A new trial was therefore ordered. [ 42 ] Mr. Small succeeded in obtaining leave to appeal to this Court, and as might be expected, the issue attracted a considerable number of interveners.

Prior to the hearing of the appeal, however, the Director of Criminal and Penal Prosecutions filed a notice with the Clerk of the Municipal Court pursuant to subsection 579(1) Cr.C . “directing the clerk or other proper officer of the court to make an entry on the record that the proceedings are stayed by his direction, and such entry shall be made forthwith thereafter, whereupon the proceedings shall be stayed accordingly and any recognizance relating to the proceedings is vacated.” [ 43 ] Although the Court heard full argument on the merits of the appeal, it relied on Borowski [34] and Smith [35] and concluded that the appeal had no object and that it would not exercise its discretion to decide the appeal for to do so would in effect be giving the parties “what amounts to a private reference”. [36] [ 44 ] In Beausoleil v.

R. , [37] the appellant had been subject to seizure of cash in Canadian and U.S. currency and other property following his guilty plea to a Criminal Code offence. He passed away prior to the hearing of his appeal, however, his testamentary liquidators were authorized to pursue the appeal since they had an interest in the recovery of the property that had been seized in the event his appeal were to be allowed.

In fact, the appeal was allowed as a matter of consent in light of earlier judgments of the Court allowing appeals of co-accused. [38] In its concluding remarks, the Court noted the exceptional nature of the circumstances. [ 45 ] Another unusual example of a case being adjudicated despite the death of a party is the sentencing judgment of the British Columbia Court of Appeal in R. v. Allen . [39] The accused had pleaded guilty to possession for the purpose of distribution or sale of child pornography (s. 1631(3) Cr.C . ) and sexual assault ( s. 271(1) Cr.C. ).

The Crown sought leave to appeal the sentence of 39 months the trial judge imposed for both counts. The hearing took place on June 13, 2012.

However, after the “reasons had been prepared, signed, and judgment was about to be rendered”, [40] the Court learned that the appellant had recently died. [ 46 ] The Court concluded that because its work was completed before the appellant’s death, the judgment should be released since the substance of the appeal “raised serious issues with respect to the sentencing principles that must be applied by a sentencing judge when confronted with a case involving grave allegations of the distribution of child pornography and sexual assault of young people.” [41] [ 47 ] A much more restrictive approach, however, can be seen in three other appellate judgments where appellants challenging their convictions died before the adjudication of their appeals. [ 48 ] In R. v.

Lewis , [42] the appellant passed away before the British Columbia Court of Appeal could hear his appeal from a conviction of possession of cocaine for the purpose of trafficking. When the Crown applied to abate the appeal, the deceased appellant’s counsel sought an order from the Court that instead it should hear it.

Counsel argued that an interlocutory judgment the trial judge rendered relating to the admissibility of certificates of analysis disclosed only a few minutes prior to the commencement of the trial “constituted an important issue in the field of drug jurisprudence” as to “what constitutes reasonable notice under s. 51(3) of the Controlled Drug and Substances Act , S.C. 1996, c. 19 .” [43] [ 49 ] Relying on Smith , [44] the Court concluded that the judgment sought to be reviewed “can hardly be described as a landmark

decision of lasting and far reaching consequence”, and that “there are no features of the case that transcend the death of the appellant.” [45] [ 50 ] In R. v. J.E.T. , [46] the Court of Appeal for Ontario was seized of the appeal of an accused convicted of eight counts of sexual assault who had been sentenced to a total of 10 years of imprisonment. The events giving rise to the charges had occurred some 40 years earlier.

Despite his death prior to the hearing, his counsel sought to persuade the Court to hear the appeal on the basis that it involved new expert evidence related to “the memories of victims of childhood sexual abuse and matters of recovered memory and repressed memory”. [47] Counsel characterized the issue as being one of “broad public importance” that gave the Court “the opportunity to contribute to the law on recovered memory”. [48] [ 51 ] The Court nevertheless dismissed the appeal as abated.

Several reasons were advanced, including the fact that in the absence of any expert evidence adduced at trial on the subject of false memories, the appeal would proceed on a basis different from that at trial, and that if an appeal were to succeed, the only possible order would be for a new trial, which was impossible.

In any event, two of the convictions had been based on testimony of witnesses that were not based on repressed or recovered memory. [49] [ 52 ] A more recent judgment of the Court of Appeal for Ontario, albeit in a matter of lesser importance (an appeal from a decision upholding a traffic ticket of $95), also concluded that the death of the appellant did not mean that the issue it raised was “evasive of judicial review” given the number of traffic tickets issued every year in Ontario.

In any event, the case had no practical consequences on the deceased’s estate, with the effect that the appeal was abated. [50] [ 53 ] In

summary, with respect to six appeals where an appellant has died before the adjudication of the appeal, in one case the Court heard it because the accused’s estate had a direct monetary interest in the outcome, [51] in four others the Court declined to hear the appeals, [52] and in the last one, the Court filed its reasons that had already been prepared and signed prior to its learning that the appellant had recently passed away. [53] [ 54 ] In this case, the respondent may not be dead, but for all practical purposes he is just as unavailable to undergo a trial in Montreal as if he were dead.

Moreover, if in fact he was dead, there can be no doubt that there would be no purpose to pursuing an appeal. [ 55 ] There has also been a judgment involving an appellant who, like the respondent in this case, was deported from Canada. In R. v. Ho , [54] the accused was charged with three co-accused of conspiracy to import heroin. A trial judge separated Mr. Ho from his co- accused as he was experiencing difficulties with his counsel that did not apply to the co-accused. The issue related to the payment of his counsel in circumstances where the Legal Aid limit had been reached.

Eventually the trial judge ordered a stay of proceedings in the absence of an agreement between Mr. Ho and his counsel. [ 56 ] The Crown appealed, but in the interval Mr. Ho was deported. While acknowledging the high improbability of Mr.

Ho’s voluntary return to Canada, Southin, J.A., on behalf of the Court, nevertheless concluded that the Court should adjudicate the appeal as framed since the question giving rise to it was “… because the foundation of the (impugned) stay was the learned judge’s view of an asserted right to counsel at public expense.” [55] Thus, the legal issue before the Court transcended the specific case of Mr. Ho.

In the result the Court set aside the judicial stay the trial judge had entered. [ 57 ] A similar situation arose in Quebec when a dispute arose during the trial of an accused who was charged with the offence of sexual touching contrary to s. 151 Cr.C . [56] The accused chose to act on his own behalf, but the trial judge would not allow him to cross-examine the complainant. He accordingly ordered a Legal Aid lawyer to appear, but that lawyer could not act since the income of the accused rendered him ineligible for Legal Aid.

The trial judge then directed the provincial Bar to send a lawyer to conduct the cross- examination. When a lawyer appeared, a dispute arose as to the payment of his fees. The judge ordered that they be paid by the Attorney General of Quebec. The Attorney General’s certiorari application to the Superior Court was dismissed, and an appeal was launched to this Court. [ 58 ] Prior to the hearing, however, the appellant made an ex gratia payment to the lawyer, and he eventually pleaded guilty to the offences with which he was charged, thus rendering the appeal of the dismissal of the certiorari application moot.

The Court, however, elected to adjudicate the issue of the liability of the Attorney General to pay legal fees in such circumstances, in particular because of the importance of the question and the absence of any appellate judgments on the subject. [57] [ 59 ] Another illustration of when an appellate court will exercise its discretionary power to hear an otherwise moot appeal can be seen in Mpega v. University of Moncton , [58] a case involving the jurisdiction of the university to adjudicate a sexual harassment complaint that led to the student’s expulsion.

A trial judge had dismissed the student’s application to annul the decision and the order of expulsion. After he had launched his appeal but before the hearing, however, he had ceased to be a student at the University. [ 60 ] At the hearing, the Court raised, on its own initiative, the question as to whether the appeal had accordingly become moot.

It nevertheless accepted the appellant’s argument that he maintained an interest in the outcome of the appeal since the expulsion remained on his academic record, and, could be problematic for him were he to attempt to be admitted to any new academic program. [59] The judgment of the Court allowed the appeal, set aside the trial judgment and granted him the relief he had claimed annulling the order of expulsion. [ 61 ] More recently, the Court of Appeal for Ontario elected to hear an appeal to it from a decision of a Review Board constituted pursuant to

Part XX.1 of the Criminal Code that had become moot because it had been superceded by a subsequent disposition order. [60] A detainee had brought a remedy under s. 8 of the Canadian Charter to be free from unreasonable search and seizure in circumstances where unauthorized urine samples had been seized from him. The issue was whether the Board had jurisdiction to grant four systemic remedies the applicant sought.

The Court considered the jurisdictional issue as to the Review Board’s power to issue systemic remedies “[is] a matter of importance not only for the appellant but to NCR (not criminally responsible) accused persons generally and to the Board.” [61] [ 62 ] It can therefore be seen from this review that despite an appeal being moot, there were cases in which there was either an ongoing interest for an appellant or his heirs in the adjudication of an appeal, or, the existence of a question of public interest that

warranted consideration in the exceptional circumstances enunciated by the Supreme Court in Smith . [62] [ 63 ] On the other side of the ledger, there are cases where appellate courts have declined to adjudicate moot appeals and instead waited for cases with real consequences for litigants before them. [ 64 ] Gagliano v. Canada (Attorney General) [63] is such a case.

The appellant sought to cross-examine a witness testifying at the Commission of Inquiry into the Sponsorship Program and Advertising Activities on the basis of testimony the witness had given before the Public Accounts Committee of the House of Commons.

By the time the appeal reached the Federal Court of Appeal, the Commission’s report had been issued, thus rendering the appeal moot. [ 65 ] Both the appellant and the Attorney General urged the Court, as Décary, J.A. described it, “(…) to hear the matter and transform what gave rise to an application for review into an application for declaratory relief.” [64] The Attorney General also contended that consideration should be given to the fact that there were two pending matters involving the same issues were before the Federal Court, and that the decision of the Federal Court of Appeal in the instant case would bind the trial judges as well as save time and judicial resources. [ 66 ] The Federal Court of Appeal judges saw things differently. [ 67 ] First, writing of behalf of the Court, Décary, J.A. observed that the discretionary power relied on by the appellant was exercised in circumstances “when there is little or no possibility that the question of law at issue will reach the appeal level in a similar case in due course”. [65] Such was evidently not the prevailing situation with respect to the legal issue the appellant sought to have decided. [ 68 ] Furthermore, the argument that a judgment of the Federal Court of Appeal may possibly be appealed to the Supreme Court of Canada was no reason to hear the appeal given the lengthy delays that would ensue in the hearing of the pending applications. [66] [ 69 ] Finally, in Guzman v.

Minister of Citizenship and Immigration , [67] the Federal Court of Appeal declined to hear a constitutional challenge to a provision of the Immigration and Refugee Protection Regulations [68] that barred someone receiving social assistance from sponsoring a spouse. As it turned out, the sponsoring spouse had left Canada the previous year and had not returned, nor could he return without a visa and the consent of the Minister in light of the reasons for which he left Canada.

The Court held that while the appellant might be able to submit a new sponsorship application if the impugned provision was declared unconstitutional, the Court found such a “possibility is too speculative to justify the determination of the constitutional issue raised in this case.” [69] The appeal was accordingly dismissed. [ 70 ] In my opinion there are no exceptional circumstances in this appeal justifying a judgment on the merits. [ 71 ] First, the Court reserved judgment in two other appeals heard during the same session before the same judges of this panel in Cazetta v. The Queen and Rice v.

The Queen . [70] In those cases, a stay of proceedings was granted by Brunton, J., where the two accused were charged with a series of indictable offences relating to the sale of tobacco products to non-Aboriginals without their having collected and remitted the applicable sales taxes to the provincial and federal governments.

The judgment in those two appeals are being rendered today and treat many of the issues raised in the present appeal as to when it is proper to issue a stay of proceedings for unreasonable delay in bringing an accused to trial. [ 72 ] Next, I note that neither counsel in this appeal suggested a single specific reason why the respondent’s case was so unique or special as to warrant a judgment because it raises issues unlikely to be resolved in other cases. Indeed, they could not plausibly make such an argument.

The mere fact that the respondent obtained a stay from a charge of second-degree murder is not in and of itself a basis in the present circumstances to adjudicate the Crown’s appeal on the merits. [71] Nor do counsel suggest that the Crown’s appeal raises any obscure but important issues that are unlikely to be examined by the Court eventually.

To quote the words used in other appellate judgments to which I have referred in these reasons, the issues this appeal raises “are not evasive of judicial review” in other appeals with which the Court is seized. [ 73 ] Indeed, the Court already has before it an appeal from a judgment of Cournoyer, J. granting a stay of proceedings in R. v.

Wolfson , [72] a case in which the accused was charged with eight counts, one of which was for first-degree murder and another for second-degree murder. [73] There are also other currently pending appeals of murder convictions in which Jordan and/or Cody applications for a stay of proceedings have been dismissed. [74] [ 74 ] Apart from the foregoing, the Court has already rendered a judgment in Guimont v. R. [75] quashing a verdict of conviction and ordering a stay of proceedings based on the principles developed in Jordan and Cody .

Moreover, there are several other pending appeals involving the application of Jordan and Cody in the context of offences other than murder. [76] [ 75 ] As far as the current submissions of Crown counsel relating to the ongoing relevance of the Extraditon Act are concerned which contradict their earlier submissions, they are more a reflection of wishful thinking and unbridled speculation, much like the situation before the Federal Court of Appeal in Guzman that was found to be “too speculative” to warrant consideration on the merits. [77] In reality, the Crown’s submissions depend on the occurrence of future hypothetical events that involve, amongst others, the Government of Canada that acted as expeditiously as it did to compel the removal of the respondent from Canada.

That government would have to be inclined, at some future, unspecified and unspecifiable time, to initiate extradition proceedings, whether or not Canada at some future point concludes an extradition treaty with Sri Lanka and whether or not the respondent is ever found in a country with which Canada does have an extradition treaty. [ 76 ] What is more significant, for present purposes, is that the immigration proceedings that led to the removal of the respondent from Canada to Sri Lanka occurred with the full knowledge that the Crown had already appealed the judgment granting the respondent a stay.

Thus, the federal immigration authorities chose not to await the outcome of this appeal on the merits, assuming they were legally capable of doing so in light of the limitations on their ability to detain the respondent. [78] That is a much more compelling indicator of the improbability of the federal government initiating extradition proceedings in the scenarios the Crown now suggests, contrary to its earlier submissions when applying for a preferential hearing when it argued that there were no coercive measures that could be

envisaged if he was removed to Sri Lanka. [ 77 ] Apart from the foregoing, the Court should be considering the issue on the facts before it, not hypothetical possibilities that depend on facts and conduct that have not occurred (and will not likely ever occur) which require measures to be taken by third parties such as the Government of Canada over which the Crown exercises no control. The undisputable facts are that the respondent has been removed to Sri Lanka at the behest of the Government of Canada, and thus, he is not here to undergo any “new” trial that might be ordered.

As matters now stand, the order for a “new” trial that the Crown seeks is simply not susceptible of being executed. There is no factual basis before us to believe that such a trial will or could plausibly ever happen. [ 78 ] I would accordingly dismiss the appeal because it is now moot. Moreover, the parties have neither submitted nor demonstrated any valid reasons to justify the Court exercising its exceptional jurisdiction to adjudicate the appeal on the merits despite the appeal being moot.

In reaching this conclusion, I am not to be taken as endorsing the outcome in the Superior Court or expressing any opinion on the merits of the appeal. ALLAN R. HILTON, J.A. REASONS OF DUVAL HESLER, C.J.Q. [ 79 ] The present reasons specifically address the case of The Queen v. Thanabalasingham . I concur with the reasons of my colleague Vauclair in the cases of Cazetta v. The Queen and Rice v.

The Queen, [79] which were heard at the same time. [ 80 ] In my respectful opinion, the judgment below is erroneous in that the Superior Court, in ordering the stay of the accusation of murder against the Respondent, in effect disregarded the teachings of the Supreme Court of Canada concerning the treatment of cases already pending as of the date of its Jordan decision imposing new time limits for holding trials in first instance, beyond which the delay to trial is presumed to be unreasonably long. [80] [ 81 ] Indeed, my reading of Jordan is that during the transitional period (prior to July 2016), provided the Crown demonstrates that the parties reasonably followed the rules as they had been up to then, proceedings that carried on beyond the new time ceilings could nonetheless be deemed justified. [ 82 ] Whether the federal authorities’ decision to remove the Respondent from Canada while the stay of proceedings pronounced in Superior Court was under appeal was the result of a true disregard for the rule of law or simple ignorance as to the importance of respecting the judicial process, the fact remains that nothing would preclude the Court from reversing the decision under appeal were it not for such removal. [ 83 ] Neither party has argued that the appeal is moot.

On the contrary, both believe that there is still a live issue at stake and that in any event the Court ought to exercise its discretion to rule on the appeal. [ 84 ] My colleague Hilton is of the view that the appeal is moot and that there are no valid reasons to justify the Court exercising its exceptional discretion to adjudicate the appeal even were the appeal to be considered moot. [ 85 ] I cannot agree. [ 86 ] Indeed I first want to point out that if there were any inordinate delays in proceeding to trial in this case, they were primarily of an institutional nature and attributable to the fact that the attorney for Respondent was not available on earlier dates proposed after the trial was originally set for February 2018, as well as to the length of the preliminary inquiry.

Such delays were normal at the time, i.e., reasonably justified so as not to not nullify the right of the state to prosecute the accused for the murder of his wife, an accusation laid before the Jordan decision. I will revert to this point in greater detail later on. [ 87 ] In the last year, the Court has received many appeals of decisions of first instance rendered as a result of motions to stay proceedings under the rules laid out in Jordan .

Because of the importance of the issues raised by such appeals and in the hope of clarifying the application of the Jordan and Cody [81] decisions in the Quebec context, the Court set up a panel of five judges to hear three such cases together. To that end, the appeals in Cazetta v. The Queen and Rice v. The Queen were selected together with the present case of The Queen v. Thanabalasingham , which this opinion specifically addresses, as already mentioned. [ 88 ] I will now summarize the facts that seem relevant for the purpose of my analysis. [ 89 ] The Respondent was placed under arrest in August 2012.

On April 28 2015, after the preliminary inquiry, he was cited for trial on a charge of second degree murder of his wife, Anuja Baskaran, which took place in Canada. His trial, scheduled for seven weeks, was eventually set to begin on April 10, 2017. However, the trial never took place, because on April 7, 2017, a judge of the Superior Court, invoking Jordan , ordered a stay of proceedings under sections 11

b) and 24 (1) of the Canadian Charter of Rights and Freedoms , as the delay between the accusations and the expected date of the end of the trial exceeded 57 months. On April 12, the Crown appealed the stay. [ 90 ] On July 5, 2017, despite the fact that the appeal was pending before this Court , the federal authorities, as already mentioned, expulsed the Respondent, who returned to his country of origin, Sri Lanka.

[ 91 ] Notwithstanding that fact, the Appellant pursued its appeal. A five member panel of the Court heard the parties in September of this year. The panel specifically requested the attorneys to file written submissions on the following questions:

(1) Has the Crown’s appeal seeking an order for what it describes as “un nouveau procès” become moot?

(2) In the affirmative:

a) Why should the Court exercise its discretion to adjudicate the appeal as framed? and,

b) If the Court decides not to exercise its aforesaid discretion, should the Court’s formal order: (

i) dismiss the appeal, or (ii) adopt some other measure that counsels could propose?

(3) In the negative, why is the appeal not moot? [ 92 ] As previously alluded to, both the Crown and the Respondent answered that the appeal was not moot and that even if it were, the Court ought to use its discretion to pronounce on it, in accordance with the principles laid out in R v. Smith . [82] [ 93 ] Neither party submitted arguments to the Court in regard of question 2 b. [ 94 ] I believe it is useful at this stage to reproduce the test proposed by the Supreme Court of Canada, in R. v. Smith , to be applied when an appellant or respondent party dies during the appeal, in order to decide whether the appeal should be heard or not: [83] In

summary, when an appellate court is considering whether to proceed with an appeal rendered moot by the death of the appellant (or, in a Crown appeal, the respondent), the general test is whether there exists special circumstances that make it “in the interests of justice” to proceed. That question may be approached by reference to the following factors, which are intended to be helpful rather than exhaustive.

Not all factors will necessarily be present in a particular case, and their strength will vary according to the circumstances: 1. whether the appeal will proceed in a proper adversarial context; 2. the strength of the grounds of the appeal; 3. whether there are special circumstances that transcend the death of the individual appellant/respondent, including: (

a) a legal issue of general public importance, particularly if it is otherwise evasive of appellate review; (

b) a systemic issue related to the administration of justice; (

c) collateral consequences to the family of the deceased or to other interested persons or to the public; 4. whether the nature of the order which could be made by the appellate court justifies the expenditure of limited judicial (or court) resources to resolve a moot appeal; 5. whether continuing the appeal would go beyond the judicial function of resolving concrete disputes and involve the court in free- standing, legislative-type pronouncements more properly left to the legislature itself. [ 95 ] The prospect of the Respondent’s voluntary or forced return to Canada being purely conjectural, that test applies here.

Each case ought to be assessed on its merit, and as the decision to hear the appeal or not is discretionary, decisions rendered in different circumstances have limited value as binding precedents. [ 96 ] I am, of course, fully cognizant of the fact that equating the fate of Respondent with death is ludicrous. The argument is merely an a fortiori one. Indeed, the Respondent is alive and presumably well, freed as he has been from being tried in Court not by death but by governmental action. [ 97 ] It cannot be doubted that a full contradictory debate occurred here.

Both sides filed factums and presented oral arguments. In addition, the Court had the benefit of representations of a general nature by the Association Québécoise des avocats et avocates de la défense and the Association des avocats de la défense de Montréal – Laval – Longueil , in their capacity as intervening parties. [ 98 ] In R. v. Smith , Mr.

Justice Binnie considered that the fact that the judgment on appeal could not finally dispose of the litigation justified the Court to refuse to exercise its discretion to rule on the appeal. [84] [ 99 ] In the present instance, should the Court grant the appeal on the merits, the appropriate order would be that the trial be held. Could such an order be carried out? I readily concede that there is much uncertainty on this point. [ 100 ] However, important judicial resources have already been allocated and spent on this appeal, on the basis that the interest of justice so required. [ 101 ] And indeed it does.

The removal of the Respondent from the country by the executive branch of the Canadian government bears no relevance to the issue of this appeal. [ 102 ] The Jordan decision admonishes the actors within the judicial system to end the “ culture of complacency within the system towards delay. ” [85] [ 103 ] In this regard, Quebec is no exception. Nonetheless, it cannot reasonably be assumed that the required transformations will take

place overnight, and that is the reason why the Supreme Court took the trouble of articulating an exceptional transitional test. [ 104 ] The following excerpt from Cody is particularly helpful: [86] To be clear, it is presumed that the Crown and defence relied on the previous law until Jordan was released . In this regard, the exceptionality of the “transitional exceptional circumstance” does not lie in the rarity of its application, but rather in its temporary justification of delay that exceeds the ceiling based on the parties’ reasonable reliance on the law as it previously existed ( Jordan , at para. 96 ).

The transitional exceptional circumstance should be considered in cases that were in the system before Jordan. The determination of whether delay in excess of the presumptive ceiling is justified on the basis of reliance on the law as it previously existed must be undertaken contextually and with due “sensitiv[ity] to the manner in which the previous framework was applied” ( Jordan , at paras. 96 and 98 ). Under the Morin framework, prejudice and seriousness of the offence “often played a decisive role in whether delay was unreasonable ” ( Jordan , at para. 96 ).

Additionally, some jurisdictions are plagued with significant and notorious institutional delays, which was considered under Morin as well ( Jordan , at para. 97 ; Morin , at pp. 799-800). For cases currently in the system, these considerations can inform whether any excess delay may be justified as reasonable ( Jordan , at para. 96 ). (Emphasis added) [ 105 ] Courts ought not and should not, during the transition period, allow or tolerate situations that bring the administration in justice into disrepute.

The stay of proceedings as an appropriate constitutional remedy remains troublesome, as it simultaneously raises the right to a trial within a reasonable time and the public interest in having a person accused of a serious crime answer for same. As Justice Cory wrote in R. v. Askov : [87] Members of the community will not and should not condone or accept a situation where those alleged to have committed serious crimes are never brought to trial solely as a result of unduly long delays. It is a serious consequence with potentially dangerous overtones for the community.

It is right and proper that there be criticism of the situation when it occurs. [ 106 ] At issue here is a matter of principle that commands that the right of women to be free from the domestic violence systemically directed towards them as wives, spouses, girlfriends, acquaintances or plainly vulnerable individuals be dealt with when needed. I do not think it can be denied, even applying the most lenient standard, that the justice system has at times demonstrated a degree of complacency towards the situation of women facing systemic violence in our society.

In my respectful view, violence towards women is an endemic phenomenon which undoubtedly represents one of the most serious social problems in Canada in this day and age. [ 107 ] In light of the contradictory jurisprudence in the courts below on stays of proceedings in circumstances such as those present here, of the importance of the issues raised for society as a whole, of the need to maintain public confidence in the administration of justice, and of the advisability of enunciating a principled approach to such issues in a timely manner, I think it important to resolve the ambiguities in the law raised in this particular case. [ 108 ] In Borowski v.

Canada (Attorney General) , the Supreme Court states that the mere fact that an issue is likely to recur frequently or is of national importance does not by itself justifies hearing an appeal which is moot. [88] It specifies that there must be the additional ingredient of social cost of continued uncertainty in the law. [89] This consideration takes on its full meaning here. [ 109 ] Clarifying the way in which a new legal principle should be applied is part and parcel of the Court’s judicial function, which, as spelled out by the Supreme Court in Housen v.

Nikolaisen , “is t o delineate and refine legal rules and ensure their universal application. ” [90] [ 110 ] At the hearing, the attorneys for all parties insisted on the importance of a proper attribution of the delay resulting from the fact that the attorney for Respondent objected to holding trial at an earlier date than that initially scheduled, albeit for legitimate reasons.

The Court has a duty to adopt a clear position on this issue, which is a recurring one, particularly in the context of the tremendous efforts and expenditures being spent at the present time on measures aimed at curtailing delays to trial in the criminal justice system. [ 111 ] On the one hand, delays attributable to the refusal by the defence to proceed earlier than scheduled were reasonably justifiable in this instance such that they cannot be deducted from the total delay.

On the other hand, as the Appellant and the Court were ready for trial, they must be deemed to have been trying to mitigate the delays and reliance on the concept of a transitional exceptional circumstance is thus warranted. It bears mentioning as well that until Jordan , no stay of proceedings was ever pronounced in Quebec in a murder case . For that reason as well, the test for applying the transitional exceptional circumstance is met here. [ 112 ] In addition, the linguistic difficulties encountered during the preliminary inquiry constitute an exceptional circumstance, as amply demonstrated by the transcripts.

Once the scheduled duration had expired, the Appellant had no control over the ensuing institutional delays. And finally, the illness of defence counsel during the preliminary inquiry ought also to be considered an exceptional circumstance. Jordan makes it clear that medical emergencies generally qualify as such. [ 113 ] The first judge failed to properly apply the teachings of Jordan in all such respects. [ 114 ] In short, the course of justice, in this case, was thwarted by the executive branch of the federal government.

This fact cannot bar the Court from exercising its discretion to dispose of the appeal if the interest of justice so commands, and it does in this case. [ 115 ] Indeed, it bears repeating that the murder of the accused’s wife, Anuja Baskaran, is not a moot issue. It could only be moot if the accused were dead, and even then, as in Smith , [91] the Court may use its discretion to hear the case.

One thing is certain: the murder of Anuja Baskaran cannot be rendered moot by an ill-considered bureaucratic move. [ 116 ] For those reasons, I propose to grant the appeal, to annul and rescind the stay of proceedings in the case of the Queen v. the respondent Thanabalasingham, to order the trial to proceed and to return the matter to the Superior Court so that it may be dealt with in accordance with the law should the Respondent find himself again within the jurisdiction of that Court.

NICOLE DUVAL HESLER, C.J.Q.