r v. HER MAJESTY THE QUEEN, 2015 QCCQ 8180

Qumak c. R. 2015 QCCQ 8180 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ABITIBI TOWN OF SALLUIT Criminal and Penal Division No: 640-01-019726-109 DATE: Oral decision: March 20, 2015 Written reasons: April 1, 2015 ______________________________________________________________________ BY THE HONOURABLE DANIEL BÉDARD, J. C.Q. ______________________________________________________________________ PAULUSIE QUMAK Accused - Petitioner v. HER MAJESTY THE QUEEN Plaintiff - Respondent ______________________________________________________________________ JUDGMENT Petition for a stay of proceedings according to

section 11b) and 24(1) of the Canadian Charter Of Rights And Freedoms ______________________________________________________________________ I - INTRODUCTION [ 1 ] Mr. Paulusie Qumak (1971-02-13), a person of Inuit ancestry and resident of Salluit, Nunavik, faces the following accusations: 1. Between April 1, 2009 and August 31, 2009, in Salluit , district of Abitibi, did commit a sexual assault on E. U., committing thereby the indictable offence provided by section 271(1)

a) of the Criminal Code . 2. Between August 1, 2009 and August 31, 2009, in Salluit, district of Abitibi, did confine, imprison or forcibly seize E. U., committing thereby the indictable offence provided by section 279(2)

a) of the Criminal Code . [ 2 ] The accused, a few minutes before the hearing on the motion to have the charges stayed, elected for a trial before a judge of the Quebec Court, since the election had not been made at the last court session in December 2014, due to weather conditions. He entered a plea of not guilty. [ 3 ] Under

section 551.1 of the Criminal Code , the undersigned has been appointed as the case management judge. II - ISSUES TO RESOLVE [ 4 ] Does the delay warrant the Court to examine whether the delay was unreasonable under

section 11(

b) of the Charter ? [ 5 ] If the case, does the analysis of the delay establishes unreasonable length? [ 6 ] If the case, does the inferred or proven prejudice suffered by the accused outweigh the interest of society in bringing the accused to trial?

[ 7 ] If the answer to one of the above questions is negative, the accused will stand trial. III - CONTEXT [ 8 ] In order to facilitate comprehension, it is important to understand the context prevailing in the delivery of justice in Inuit communities constituted in municipalities. Since the signature of the James Bay and Northern Quebec Agreement, the administration of justice in Inuit municipalities is governed by

chapter 20 of the agreement. [ 9 ] The Itinerant Court created under

section 20.0.5 travels in each community designated by the “lieutenant-gouverneur en conseil par proclamation”. Not all of the 14 municipalities are so designated. Salluit is designated and at the same time all the files of the Ivujivik community, who is near but not designated, are processed in Salluit, thus contributing to the volume of files. Persons accused and witnesses if the case, must be transported to Salluit. [ 10 ] The services of interpreters are necessary for persons for whom English or French is not their mother tongue and for whom the comprehension of English or French does not permit full comprehension of what is being said in court.

Interpretation is essential and time consuming. [ 11 ] Weather conditions also have to be taken in account. On occasions, it will be impossible for the plane to land or if it lands, weather conditions during the week will render impossible court sessions or the landing of other planes transporting detainees scheduled to attend court. All detainees must be transported elsewhere at the end of the day, considering the absence of sufficient detention facilities in Salluit. [ 12 ] The above and much more complicate the delivery of justice and tend to create an ongoing and permanent overload of the court docket.

Finally, must be added the difficulty for Inuit persons to understand justice as a whole and criminal proceedings in particular. Different culture, different concepts.

Consequently, their presence in court may pose problem not necessarily because of a lack of collaboration but often in relation with lack of comprehension of the different steps associated with criminal proceedings. [ 13 ] Every step that needs to be accomplished from the initial interview between the lawyer and the person accused to the trial, if the case, necessitates more time and has an impact on all the different aspects related to a court session held in an Inuit community. [ 14 ] The population of Salluit and Ivujivik comprises over 1,500 individuals and the Itinerant Court holds one week session in Salluit four times per year, since September 2014.

It was less before. IV - ANALYSIS [ 15 ] It is now well established that four factors must be considered when the Court determines if the delay is unreasonable: 1. The length of the delay; 2. Waiver of 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 institutional resources;

e) other reasons for delay. 4. Prejudice to the accused. [ 16 ] 1. Length of the delay: [ 17 ] The Crown and the Defence agree that the total delay is 1793 days, more precisely 5 years minus 32 days, if the starting point is when the information is sworn. [ 18 ] They further agree that the delay is 1464 days if the starting corresponds to the serving of the summons, more precisely 4 years and 4 days. [ 19 ] They disagree on the starting point, but the Court is of the opinion that the issue has long been settled since the decision of the Supreme Court in R. v .

Kalanj [1] , in which justice McIntyre writes: I would therefore hold that a person is “charged with an offence” within the meaning of s. 11 of the Charter when an information is sworn alleging an offence against him, or where a direct indictment is laid against him when no information is sworn. [ 20 ] Consequently, the total delay to be considered is 1793 days.

[ 21 ] The length of the delay itself speaks as to the necessity to examine it. [ 22 ] 2. Waiver of the delay: [ 23 ] The Defence and the Crown have not submitted in their arguments any period under that factor and the minutes of the hearings do not contain any indication that the accused has expressly or implicitly waived his right to complain of the delay. [ 24 ] 3. Reasons for delay:

a) Inherent time requirements : [ 25 ] The alleged crime more specifically, a sexual assault is quite serious but at the same time its complexity is not that high. Usually, this type of case does not involve documentary evidence and does not involve a large number of witnesses. [ 26 ] The Crown computes 294 days and the Defence 252 days. [ 27 ] The Itinerant Court did not arrive in Salluit on September 1, 2010, as scheduled, weather conditions not permitting it.

There is a mention on the minutes of the hearing of a loss of jurisdiction. [ 28 ] On November 18, 2010, the file was crossed out since the summons had not been served. It is only on March 17, 2011 that the accused appeared in court and the next step for “orientation” was scheduled for August 24, 2011. Consequently, time elapsed as inherent delays starts on March 17, 2011 as advanced by the Defence. [ 29 ] Thus a total of 252 days from March 17 to November 24, 2011, since the file was postponed again for orientation on November 24 of the same year.

b) Actions of the accused : [ 30 ] The accused was absent on November 24, 2011 and a warrant endorsed was issued. He was arrested on January 20, 2012 and was released with conditions, namely the condition to present himself in court on March 8 of the same year, notwithstanding the fact that there was a court session in Salluit on January 25, 2012.

No explanation is provided to the Court. [ 31 ] On March 8, 2012, the accused requested a preliminary inquiry for the following August 16 and a warrant was issued on that day, since he was absent. [ 32 ] He was arrested on September 6, 2012 and was released with the condition to be present in court on December 5 of the same year, even if there was a court session in Salluit on September 13, 2012. No explanation is provided to the Court. [ 33 ] Thus a total of 216 days between November 24, 2011 and December 5, 2012. [ 34 ] The Defence does not submit any explanation for the absence of the accused.

c) Actions of the Crown : [ 35 ] The Crown does not provide any explanation for the delay in serving the summons after the information was sworn on April 21, 2010. [ 36 ] On November 18, 2010, the file was crossed out since there was no service or no proof of service. It is only on March 17, 2011, that the accused came to court following service at a date that is not in evidence.

The total delay between April 21, 2010 and March 17, 2011 is nearly a year, more precisely a little less than eleven months. [ 37 ] The Crown and the Defence compute 119 days because they start computing on November 18, 2010. [ 38 ] Must also be added that there is no explanation provided as for the reasons why, when released, the accused was under a condition to be present in court at a date further than the nearest court session. On two occasions, he was released with such a condition.

d) Limits on institutional resources : [ 39 ] Both the Crown and the Defence agree on a total of 1030 days, including the delay for weather conditions and the actions of the accused. [ 40 ] If we excluded the actions of the accused and the absence of the Court in relation with weather conditions, the Defence alleges a total of 734 days and the Crown 807 days. [ 41 ] The Defence computes 734 days between April 2010 and December 2014. This number represents the delays between the court sessions and, if we add the delay of 189 days for “overloading”, the final number is 923.

e) Other reasons for delay : [ 42 ] A total of 266 days are related to the impossibility to hold a court session because of the weather conditions. More precisely 90 days between August 30 and November 28, 2013, 78 days between September 1 and November 18, 2011 and 97 days between December 11, 2014 and March 18, 2015. [ 43 ] Delays related to weather conditions can not be attributed to the Crown or the Defence, but they still add to the impact on the accused. One could be tempted to relate these delays to the limits of institutional resources, arguing that they could be avoided or

diminished by a higher frequency of the Itinerant Court in the community. The Court is not convinced and adds that the weather obstacle is only one of the numerous parameters to consider in the determination of the frequency. [ 44 ] Overall, if the delay can not be attributed or included in one of the factors, it can not be ignored as part of the global delay, with its consequences.

f) Prejudice to the accused : [ 45 ] In R. v. Morin [2] , the Court at page 777, refers to the prejudice as defined in R. v . Askov [3] : (iv) Prejudice to the Accused. There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resulting from the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then such proof may serve to excuse the delay.

It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen his position that he has been prejudiced as a result of the delay. [ 46 ] Nearly 5 years, even if we exclude the delays caused by the actions of the accused, constitutes a very long delay that brings us quite near to an irrebuttable presumption, if not directly to it. [ 47 ] The accused wanted to testify and explain his situation. Aged 44, he has one prior conviction in 1999 for an offence under

section 264.1 of the Criminal Code . He has difficulty to remember exactly the number of times he came to court for his case and when he was not in court and supposed to be present. He does not consume cigarettes, drugs or alcohol, even if depressed by the situation. [ 48 ] Because of the accusation of sexual assault, he resigned from his job as an addiction worker. He was employed to help persons dealing with dependency to alcohol or drugs. He was not fired but he knows that you can not keep your job with such an accusation.

So he resigned and he affirms that, at one point, he wanted to go back to his job, but felt that they would not accept him. [ 49 ] He felt depressed, even suicidal but praying saved him. [ 50 ] It affected his conjugal life. He had met someone and she found out about the accusation. They had planned to adopt a child and he did not attend the baptism ceremony. His relation is in jeopardy. [ 51 ] With the help of God he has, for the past years, tried to overcome the impact of the accusation.

A job at the school center with graduate students is impossible as would also be the case at the Wellness center. [ 52 ] People in the community have doubts concerning him. He went to Ivujivik to start in a new environment but without success. He resigned from his job in Ivujivik, as a stock boy at the grocery coop. He also had a job as a radio announcer for a while. [ 53 ] Examination and cross-examination of the accused convinces the Court that the length of the delay has had a serious impact.

Stress, depression, suicidal thoughts, incapacity to maintain his employment, tension in his conjugal life and difficulty to face the members of his community might be considered as inevitable impacts. The question is not to decide if the stress and anxiety should exist, but when do the impacts become intolerable because of the delays. [ 54 ]

Section 11(

b) of the Charter guarantees the security of the person by seeking to minimize anxiety and stigma of exposure to criminal proceedings. In the present case the length of the delay clearly establishes the contrary. [ 55 ] As stated in R. v . Morin , by Justice McLachlin at page 810: The task of a judge in deciding whether proceedings against the accused should be stayed is to balance the societal interest in seeing that persons charged with offences are brought to trial against the accused’s interest in prompt adjudication.

In the final analysis the judge, before staying charges, must be satisfied that the interest of the accused and society in a prompt trial outweighs the interest of society in bringing the accused to trial. [ 56 ] The analysis of the delay convinces the Court that in a small Inuit community where everybody knows everybody, where a person holds a job in a sensitive field, where such a person is not associated with drug or alcohol consumption, where such a person has one prior conviction going back to 1999, such a person is extremely valuable for the community, if not essential. [ 57 ] Such a person, accused of a sexual assault, a very serious crime has an authentic and genuine interest in a prompt adjudication.

His community, more precisely his society also has a real interest in a prompt adjudication, given the importance of the accused in the healing process of individuals confronted to drugs and alcohol dependency. [ 58 ] The interest of society in bringing an accused to trial needs no discussion as it is easily comprehensible.

The nature of the accusation, as in this case, an accusation of sexual assault and confinement, renders that interest palpable and to some extent urgent, more so when one considers the impact on the plaintiff, a woman in most cases, living in the same community as the accused. [ 59 ] Balancing these interests is a delicate process but at the same time such an exercise is a necessity in our society. [ 60 ] The Court concludes that the interest of the accused and society in a prompt adjudication outweighs the interest of society in bringing the accused to trial.

[ 61 ] FOR THESE MOTIVES, THE COURT: [ 62 ] GRANTS the application; [ 63 ] DECLARES that the right of the accused to be judged within a reasonable delay as provided by

section 11(

b) of the Canadian Charter of Rights and Freedoms has been denied; [ 64 ] ORDERS a stay of proceedings under

section 24 of the Canadian Charter of Rights and Freedoms , in the file 640-01-019726- 109. __________________________________ Daniel Bédard , J.C.Q. M e Sarah Plamondon For the accused - Petitioner M e Thierry Potvin For the plaintiff - Respondent Date of hearing: March 18, 2015