2022 QCCQ 8919, 2022 QCCQ 8919

Translated from the original French R. c. Minville 2022 QCCQ 8919 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N°: 500-01-222284-215 DATE: December 2 nd 2022 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HIS MAJESTY THE KING Prosecution - applicant v.

FRANKLIN MINVILLE Accused - respondent and ATTORNEY GENERAL OF QUEBEC Impleaded party INSTITUT PHILIPPE-PINEL Impleaded party ______________________________________________________________________ JUDGMENT ON A MOTION TO EXTEND THE TIME FOR AN ASSESSMENT UNDER s. 752.1 C.C. (s. 752.1(3) C.C. ) [English version of reasons originally delivered in French] ______________________________________________________________________ THE CONTEXT [ 1 ] The Court is seized with an application to extend the time for the completion and filing of an assessment report regarding the offender’s dangerousness.

Lack of resources and a heavy workload are the only grounds that are invoked by the prosecution. [ 2 ] The importance of the assessment report is self-evident. Based on the plain language of s. 753(1) C.C. and a steady body of caselaw, [1] the assessment report is a condition precedent to any eventual dangerous offender designation. [ 3 ] On July 12 th 2022, the accused Franklin Minville pled guilty before me to violent crimes of an unmatched seriousness, including attempted murder (s. 239(1)(

b) C.C. ), aggravated assault (s. 268 C.C. ) and uttering death threats (s. 264.1 C.C. ) towards Kazimierz Ballue. Based on the agreed statement of facts, [2] the attack was deliberate and premeditated. [ 4 ] With the explicit objective of causing the victim’s death, Minville located him, followed him for 30 minutes on foot and when he caught up, stabbed him in the face, in the stomach and in the back. Bystanders had to intervene to end the attack. Ballue miraculously survived. During his police interrogation, the accused warned that as soon as he was released from jail, he would finish the job and kill the victim.

[ 5 ] Minville has a plethora of prior convictions for violent crimes. Moreover, at the time of the attempted murder, he was already managed by a seven-year long term supervision order [LTSO] (s. 753.1(1) C.C. ), imposed following convictions for multiple extortions and death threats. [ 6 ] The Crown is now contemplating making an application to have the accused declared a dangerous offender pursuant to s. 753 C.C.

To that end, on September 23 rd 2022, it filed a motion for remand for assessment under s. 752.1 C.C. which was not opposed by the defence. [3] On that date, the Court granted the request and ordered that the offender be remanded to the Philippe-Pinel Psychiatric Institute for a period of 60 days. [ 7 ] I note that in the Crown’s motion, it sought a 60-day period.

In fact, at s. 752.1(1) C.C. , Parliament has set the maximum term to 60 days, leaving open the possibility of seeking an extension of “no more than” 30 additional days where reasonable grounds justify it. [ 8 ] Alas, on October 18 th 2022, I received a letter directly from the Philippe-Pinel Institute stating that it would be more than six months before Mr. Minville’s file is assigned to an assessor. This excluded the time needed for the assessment itself and the drafting of a report.

In fact, based on the evidence presented at the hearing, we should anticipate that the total delay will amount to four or five times the maximum statutory period. Furthermore, Mr. Minville’s file is hardly exceptional. Instead, the problem is generalized across the board. THE FACTS 1- The facts recognized by the accused during his guilty plea [ 9 ] In August of 2021, the accused and the victim worked for different street cleaning companies having contracts with the City of Montreal.

On August 8 th 2021, at around 10:15 am, the victim was sweeping the sidewalk on Sainte-Catherine Street downtown. [ 10 ] All of a sudden, a physical altercation erupted between the victim and the accused. An independent bystander saw the commotion and approached the scene to separate the two men. Upon arriving, he quickly noticed that Minville was armed with a knife. [ 11 ] Minville grabbed Ballue by the neck, holding the knife in his other hand. In front of the bystander, the accused began viciously stabbing the victim in the face, in the stomach and in the back as Ballue screamed for help.

In the mêlée, the accused dropped the knife and the witness quickly intervened to kick it away. [ 12 ] The accused fled the scene on foot, covered in the victim’s blood. He removed his shirt and attempted to shove it down a storm drain. Within six minutes, police officers located him in a nearby alley, bare-chested. When the officers approached him, the accused ominously exclaimed: “it’s a good thing you guys showed up; I wanted to finish him”.

The weapon used was a kitchen knife with a 16 cm blade. [4] [ 13 ] During his police interrogation following his arrest, the accused calmly admitted that his intention was to kill Ballue because the victim had disrespected him. Three days prior, Ballue had called him a lazy, bad worker. His stated objective was to commit murder. To that end, that morning, he walked to Sainte-Catherine Street to verify that the victim was in fact working. Having found him, the accused then followed him for 30 minutes.

He then quickly broke into a nearby business on Maisonneuve Boulevard where he stole a knife, then continued his pursuit. When he finally caught up to the victim, he stabbed him repeatedly. In his interview, the accused admitted that he was not acting in self-defence. The victim had not assaulted him in any way. Moreover, the accused had not consumed any drugs or alcohol that morning. [ 14 ] Finally, during the interrogation, Minville warned the investigator that he would kill Ballue once released from prison. [ 15 ] The victim was hospitalized, in critical condition. Doctors feared for his life.

At this juncture, little detail was given to the Court since the sentence hearing proper has yet to take place. The extent of the injuries is not in evidence yet. That being said, the Crown filed photos of the victim taken at the hospital four days after the attempt on his life. [5] The victim underwent multiple surgeries. He has extensive cuts on his neck, cheeks, mouth and back of his head, near his ear. He also has various cuts and lacerations on his chest, on his abdomen, on his forearm and on his ribs. He has defensive wounds on his fingers and palms. There are too many stitches to count.

His entire right hand and forearm are covered by an enormous bandage. 2- The accused’s prior convictions [ 16 ] The accused is no newcomer to the justice system. He has an extensive criminal record spanning from 2008 to 2022. His most recent conviction (prior to his reincarceration) was barely three months before the attempted murder. He has priors for various offences, including several for violent crimes committed while detained, to wit: March 30 th 2021 -Extortion -346(1) C.C . -suspended sentence. -2-year probation.

October 1 st 2015 -Robbery -344(1) C.C. -2 years imprisonment. June 3 rd 2013 -Attempt to utter death threats -264.1 C.C. (3 counts) -18 months consecutive. November 12 th 2012 -Intimidation of a justice system participant. -423.1 C.C. -1 year consecutive. May 31 st 2011 -Attempt to utter death threats -264.1 C.C. -12 months imprisonment. May 4 th 2011 -Extortion -346(1) C.C. (5 counts) -Uttering death threats -264.1 C.C. (7 counts) -4 years imprisonment consecutive to the sentence already being served. -long term offender designation (s. 753.1(3) C.C. ) and 7-year LTSO.

November 2 nd 2009 -Uttering death threats -264.1 C.C. -3 years imprisonment. January 29 th 2009 -Uttering death threats -264.1 C.C. (2 counts) -9 months imprisonment. -3-year probation. December 5 th 2008 -Uttering death threats -264.1 C.C (3 counts) -Criminal harassment -264(1) C.C. -20 months imprisonment. -3-year probation. June 17 th 2008 -Breach of a conditional sentence order. -742.6(9)(

d) C.C. -CSO revoked.

January 24 th 2008 -Arson causing material damage -434 C.C. (3 counts) -14 months to be served in the community. -3-year probation. [ 17 ] In addition to the foregoing, the accused has five prior convictions for breaching probation. [ 18 ] Finally, on November 29 th 2022 before me, the accused pled guilty to assaulting a correctional officer (s. 270(1) C.C. ) on June 1 st 2022 at the remand centre. He also pled guilty to breaching his LTSO (s. 753.3(1) C.C. ). For those offences, the parties made a joint submission of 12 months imprisonment, followed by 2 years consecutive.

The Court endorsed their joint submission and sentenced the offender accordingly. As such, he is now serving a 3-year federal sentence. 3- The two letters received by the Philippe-Pinel Institute [ 19 ] As mentioned above, the Court ordered the accused’s remand for assessment on September 23 rd 2022.

The period was to be for 60 days. [ 20 ] On October 18 th 2022, I received a first unsolicited letter [6] from Élizabeth Mandeville, director of service for intake, admission and archives at the Philippe-Pinel Psychiatric Institute. [ 21 ] In her letter, she informed the Court that “assigning the assessment request would take more than six months ” [emphasis in the original]. [ 22 ] The letter further explained that a long waiting list had developed in recent years. By mid-October, there were 24 accused in line for an assessment under s. 752.1 of the Criminal Code . Mr.

Minville was 23 rd in the waiting list. [ 23 ] On average, the Institute used to receive 40 requests per year. However, during the year 2021-2022, over 60 requests were made, which was atypical and which largely surpassed their capacity. Given the “lack of resources” and the context of the pandemic, it was impossible for the Institute to keep up with the caseload.

Moreover, in addition to the assessments regarding dangerous (or long term) offenders, they had also experienced a significant increase in the number of other psychiatric assessment requests, for instance for fitness to stand trial or for NCR applicability (s. 672.11(a)(

b) C.C. ). [ 24 ] The letter described an agreement between the Department of Health and the Department of Justice as well as various recruitment problems they were facing. The following passages are particularly relevant: An agreement concluded between the MSSS [Department of Health] and the MJQ [Quebec Department of Justice] provided that the Philippe-Pinel Psychiatric Institute was to conduct 15 assessments per year, with an associated budget. However, that agreement is expired and the funding is insufficient. We have voiced our concerns to the MSSS and the MJQ.

A plan was also proposed that the MSSS create a specific and permanent department, properly funded and staffed, in order to ensure that we could keep up with the increasing demand. We are still awaiting their answer. […] On a related note, we have only six designated experts who are tasked with treating all such requests, stemming from all judicial districts. The payment structure in place for said experts makes recruitment of further assessors difficult. Furthermore, two of the six experts will be retiring in the next 18 months.

As for the four others, they have other professional obligations, beyond their DO and LTSO assessments. [ 25 ] Approximately one month later, on November 11 th 2022, Ms. Mandeville sent me a second unsolicited letter. [7] The accused in the case at bar had climbed to 22 nd in the waiting list. [ 26 ] The second letter is similar to the first, although certain portions thereof are conspicuously absent.

For instance, the paragraph anticipating a delay of over six additional months was removed. [ 27 ] Also removed from the letter was the paragraph denouncing the lack of resources and describing the obsolete agreement between the MSSS and the MJQ. [ 28 ] Finally, although the paragraph referring to the number of psychiatrists remains, various sentences were removed from within it, namely those discussing the recruitment challenges caused by the lack of funding and the impending retirement of two qualified assessors. 4- The testimony of Ms. Mandeville, director of service at the Philippe-Pinel Institute

[ 29 ] The contents of these letters were troubling, to say the least. Even more concerning were the modifications made to the second letter and the fact that portions thereof had been carefully excised. [ 30 ] Due to those unsolicited letters, the Court wrote to the parties on two different dates.

First, on November 2 nd 2022, I asked that a representative of the Quebec Attorney General’s Office be present at the November 28 th hearing date, since I would have the following questions to ask: • What concrete measures has the Government of Quebec taken to rectify this problem? • What are the comparable delays in Ontario for similar requests? and • Are there bilingual forensic psychiatrists in Ontario that could proceed to Mr.

Minville’s assessment in the case at bar? [ 31 ] In another email sent to the parties on November 11 th 2022, I notified the Crown that I had several questions following the reception of the second letter. Without ordering anyone’s presence, I simply asked to Crown whether it deemed it appropriate to produce Ms. Mandeville as a witness in support of its extension request. [ 32 ] Ms. Mandeville did in fact attend court on November 28 th 2022, although the hearing had to be cancelled for reasons addressed below. Mandeville returned the following day.

In her testimony, she confirmed that the delay problem is generalized. [ 33 ] Her role is to manage the coordination, reception and treatment of assessment requests. She has served these functions for three years. [ 34 ] She explains that the number of assessment requests under s. 752.1 C.C. somehow exploded in the last two years. Typically, over the previous five years, the Institute received an average of 40 requests per year.

Yet, for reasons that remain partly unclear, the Institute received 60 requests between April of 2020 and March of 2021. [ 35 ] She describes this as a recent, unpredictable and overwhelming phenomenon. In all her years, she has never seen so many requests come in. In particular, in the month of July of 2020 alone, she received 20 assessment requests in a 5-week span. [ 36 ] When asked what caused this sudden increase in assessment requests, she can only speculate. Having sat on various committees, she observes that many system actors attribute the increase to the #MeToo movement.

They contend that the sharp increase in the reporting of sexual crimes had a proportional effect in increasing the number of assessment requests. [ 37 ] She also cites the justice system’s paralysis during the COVID-19 pandemic, although she acknowledges that assessments never stopped during the crisis. Even during the intense lockdowns in March of 2020, assessments continued by way of video-link. This allowed the Institute to keep up with the demand. [ 38 ] For the last five years, there were always six designated experts to conduct the assessments. Recently, in August of 2022, one of them resigned.

They are now down to five. [ 39 ] In recent years, before the delays became problematic, the average period for an assessment was 120 days. [ 40 ] As of right now, the delay is over six months. [ 41 ] Since November of 2021, Ms. Mandeville has been “raising a red flag”. She has done everything she can to improve the situation. She has resorted to begging the Quebec City Psychiatric Centre for help. Although she feels that State actors are hearing her out, she has yet to see anything concrete being done. [ 42 ] Mr. Minville is now 17 th in the waiting list.

Despite that, we are still to anticipate six additional months as of today before an expert is assigned to his file. Of course, after that, the assessment will need to be conducted and the report written and filed. [ 43 ] Ms. Mandeville manages all the requests in chronological order of reception. The Institute is averse to any type of “priority classification” of files since each accused/attorney/judge would inevitably consider his file to be more urgent than others. [ 44 ] When asked to identify the root of the problem, her answer is unequivocal: there are lacking resources at the Philippe-Pinel Institute.

The term “resources” is well defined. They are lacking psychiatrists and specialized psychologists in the sexual field who could conduct the assessments. Ideally, the Institute would like to have one (or several) psychiatrist(

s) exclusively designated for DO and LTSO assessments, on a full-time basis. In the current state, the same doctors are called to conduct countless other tasks, not the least of which are fitness assessments (s. 672.11(

a) C.C. ) and criminal responsibility assessments (s. 672.11(

b) C.C. ). [ 45 ] When asked to explain her comments in letter R-1 regarding how salaries affect recruitment, she expresses that the current payment scheme for forensic psychiatrists at the Institute makes the position unattractive as compared to other work in psychiatry. [ 46 ] When asked to address the issue of insufficient funding (to which she referred only in her first letter), she explains that the agreement entered into with the government in 2011 is obsolete and it has never been updated.

The agreement in question had earmarked 100 000$ per year for the Institute, on the premise of 15 assessments per year. However, the Institute conducts well over 35 assessments per year.

Although there are discussions in progress to address this problem, she still awaits any concrete news. [ 47 ] For years, the Philippe-Pinel Institute has been advocating for better funding in this field. [ 48 ] Unfortunately, given the gross lack of resources, it will take up to two years to regain control of the delays. [ 49 ] The Court asked her how long it would take before the Institute could respect the 60-day target that is provided in s. 752.1 of the

Code . The witness answered that given the current state of the resources at her disposal, it would take three years . 5- Submissions by the Attorney General’s Office and by the Philippe-Pinel Institute [ 50 ] On consent, the parties agreed that certain facts be entered in evidence by way of informal submissions by counsel for the Attorney General. [ 51 ] First, the situation in Ontario was summarized. Their system follows a fundamentally different structure.

Instead of all requests being funnelled into one designated hospital, the Ontario Attorney General has a short list of specialized psychiatrists that are qualified to conduct DO and LTSO assessments under. 752.1. These doctors are not necessarily anchored to one specific hospital. [ 52 ] Currently, the Ontario justice system has no problem respecting the statutory timelines of s. 752.1(1) of the Code .

The issue simply does not exist there. [ 53 ] In his submissions, counsel for the Quebec Attorney General assures the Court that the government is aware of the problem and that it is mobilizing the requisite resources to find a solution. In the government’s view, the problem is “mainly” about the lack of qualified candidates in Quebec for these unattractive professional positions. [ 54 ] The Department of Health and the Department of Justice are holding meetings and they are working hard to find a solution to the problem. [ 55 ] Unfortunately, in the short term, the Quebec government has no solution to propose .

Nevertheless, counsel insists that the problem is being taken seriously. [ 56 ] As for counsel for the Philippe-Pinel Institute, she looked into the number of assessments being requested in Ontario. Her research revealed that in Ontario, as well as every other Canadian province, the number of assessment requests decreased during the pandemic. Only in Quebec did the numbers increase. [ 57 ] In fact, in Ontario, the number of assessment requests never surpassed 40 per year. THE POSITION OF THE PARTIES [ 58 ] Defence counsel finds herself in an ethical conundrum.

She expresses that the current situation is deplorable, but she does not have instructions to contest the Crown’s extension request in the case at bar. Her submissions were therefore brief. [ 59 ] It is trite law that the accused’s formal acquiescence to the extension does end the debate. [ 60 ] Counsel for the prosecution ( i.e. the Director of Criminal & Penal Prosecutions) advanced his position with professionalism, moderation and conviction, although there was a palpable feeling of exasperation in his tone. He is at the service of the DPCP, an independent prosecutorial body.

In that capacity, Crown prosecutors are also at the mercy of the gross lack of resources, especially as they relate to forensic psychiatric assessments. The prosecutor cannot justify the institutional deficiencies of our system; it is not his job to do so. He is not a political actor, which is the very reason the DPCP exists as an independent entity. The prosecutor is stuck between a rock and a hard place. On one hand, he wishes to eventually present a motion for a dangerous offender designation (if the report’s conclusion sustains such a finding), which is a totally appropriate measure.

On the other hand, he is visibly uncomfortable asking this Court to ignore a clear statutory provision. [ 61 ] Nevertheless, the Crown argues that if the extension is granted, Minville will suffer no prejudice whatsoever. He will remain incarcerated for a period of at least three years, given his recent sentences stemming from his assault on the correctional officer. Moreover, the Crown will be seeking an additional consecutive sentence in excess of 10 years for the attempted murder.

Thus, he argues that there is a complete lack of prejudice, which is the decisive consideration in the caselaw. [ 62 ] Counsel adds that the accused’s behaviour has already demonstrated that he is wholly incapable of controlling his violent tendencies. Thus, it is incumbent on us to ensure that he does not fall through the cracks at this juncture. [ 63 ] The Crown therefore asks me to extend the period for another 60 days. When the Court underscored that such an order would be futile, counsel humbly acknowledged it. He thus increased his request to a 90-day extension.

Alas, based on the uncontroverted evidence before me, a 90-day extension would be equally futile. [ 64 ] As for counsel for the Attorney General’s Office, he insists on stating that the proper phone calls have been made. The government actors have heard this Court’s concerns loud and clear, even before the November 29 th 2022 hearing in the case at bar. As soon as the parties received my emails requesting the presence of a lawyer for the Attorney General, they understood that the situation was urgent. The government is actively trying to think of solutions as we speak.

THE LAW [ 65 ] Despite the imperative wording of sections 752.1(1) and 752.1(3) C.C. , extensions exceeding the cumulative 90-day total remain possible.

[ 66 ] Parliament’s language appears to be prescriptive. It states that the judge “shall” remand the offender for a “period not exceeding 60 days”. Despite this apparently firm language, the Code does not expressly provide for any consequences for the failure to respect the mandated timeline. It therefore falls to the courts to interpret the parameters of the “shall”. [ 67 ] In the cases of R. c. Larrivée , [8] R. c. Gladu [9] and R. c. Barkley , [10] the Court of Appeal held that the timelines provided in s. 752.1 C.C. are procedural and not substantive.

As such, in the absence of any prejudice, the failure to respect them will not result render the DO designation proceedings a nullity. [ 68 ] However, it bears mentioning that in all three cases, the question of granting or refusing an extension was not in issue. [11] More importantly, in neither of the three cases did the Court of Appeal rule that a trial judge is required to grand an extension. [ 69 ] In Larrivée , the timelines were not in play.

Instead, the accused complained that the trial judge had relied on an older assessment report from 2013 (pertaining to another file) when sentencing him in his new 2015 file. In any event, at trial, the defence had consented to the filing of the old report and to the LTO designation, which was the fruit of a joint submission. The Court of Appeal dismissed his appeal. [ 70 ] In Gladu , there had never been a request for an extension of time. Thus, the Court of Appeal was not called to address the appropriateness of any such request.

The accused had been held in remand longer than the period mentioned by the judge in the initial order. It is against that backdrop that the Court of Appeal held that the failure to respect the delays did not invalidate the entire proceedings.

In so deciding the Court of Appeal noted the lack of prejudice and mentioned that an offender that was held in remand for a longer period (than that in the order) had other resources available to him, such as: seeking a writ for habeas corpus , refusing to remain at the Philippe-Pinel Institute for any longer and demanding that his sentence hearing take place without delay, without waiting for the assessment report. [ 71 ] It is also relevant to note that Mr. Gladu had consented to his extended detention and his LTO designation. He simply changed his mind subsequently on appeal.

For these reasons, the decision is only marginally helpful to us here. [ 72 ] Finally, in Barkley , the issue revolved around the requirements of s. 754(1) C.C. That is simply not the case in the matter before me. [ 73 ] The case of R. c. Pauzé is more directly applicable. [12] Over the objections of the accused, the trial judge granted several time extensions, mainly due to the lack of resources at the Institute and other COVID-related considerations. The Quebec Superior Court dismissed the application for a writ of certiorari on the basis that the timelines in s. 752.1 C.C. were procedural and not substantive.

In the circumstances of that case, the accused had failed to demonstrate that he had suffered any prejudice, namely because he was facing a lengthy prison sentence anyway. [13] [ 74 ] A few remarks are in order. First, the pandemic situation in December of 2021 was different from what it is today. Second, the decision does not list what evidence was before the trial judge when the extension requests were made. This lack of detail makes it difficult to properly compare the current situation with that in December of 2021.

It is similarly impossible to assess whether the government took any corrective measures since then. More importantly, upon reading the decision, it is impossible to determine if the Court was grappling with systemic inaction by the State, as we are in the case at bar. [ 75 ] Moreover, in its decision, the Superior Court simply declined to issue the extraordinary remedy of a certiorari writ.

Nowhere in the decision did the Court hold, a contrario , that trial-level judges are required to grant every extension request. [ 76 ] While it is uncontroversial that a judge may grand an extension, it is equally clear that he is not obliged to grant it, as confirmed by the Nova Scotia Court of Appeal in R. v. A.H. [14] [ 77 ] The judge has a discretionary power to grant or deny the extension request. To be sure, such a power must be exercised judicially and within the limits of the applicable statute.

Extension requests must not be granted automatically, nor should they be denied for capricious, arbitrary or irrelevant reasons . [ 78 ] As for the applicable standard, I agree with Renke J. in R. v.

Scrivens when he states that exceeding the timelines must be the justified exception. [15] A detailed explanation must be provided for non-compliance and the State’s actions and omissions must be scrutinized. [16] He adds: … s. 752.1(3) is meaningless if non-compliance is excused without application for an extension… Recognition of a discretion promotes the importance of standardization and regulation by requiring an examination of the circumstances to determine whether or not further proceedings are merited. [17] [ 79 ] In R. v.

McDonald , in deciding to grant the extension, Fitch J. (as he then was) considered the fact that the delay had not been caused by systemic factors, “the consequences of which should be closely monitored by the court”. [18] I entirely agree with this statement. Incidentally, in McDonald , the delay was caused by a mere mix-up. The psychiatrist assigned to the assessment had misunderstood the timeline indicated in the order. There was no negligence by the Crown or by the psychiatric hospital. [19] [ 80 ] A similar situation occurred in R. v.

Howdle , which later became one of the leading Canadian cases espousing the flexible approach. The psychiatrist was simply mistaken in his reading of the order’s return date. A 30-day extension was therefore granted to allow him to complete his report. [20] The situation in the case at bar is markedly different. ANALYS IS AND DECISION [ 81 ] Although it should be obvious, I pause to mention from the outset, in the clearest of terms, that the Court puts no blame on Ms.

Mandeville. Her good faith, her valiant efforts and her devotion towards the justice system and the proper management of the Philippe- Pinel Institute are unquestionable. Her testimony was sincere and passionate, if at times marked by exasperation. The same comment applies to the staff at the Institute, especially the forensic psychiatrists who make commendable efforts and work tirelessly in patently difficult conditions. Their commitment is unwavering. [ 82 ] They are not the cause of the problem.

Instead, they are victims of a situation that they do not control. [ 83 ] Despite the foregoing, based on the evidence presented before me, it is futile to hope that Mr. Minville’s assessment will be completed and a report filed within the next eight months. Added to the two months already elapsed, this would bring us – in a best-case scenario – to a 10-month waiting period for a report that should have been ready in 60 days. The statutory 60-day period has already passed and the assessment process has not begun.

It is not on the verge of beginning either. [ 84 ] The delays in this case can be described as catastrophic. Worse still, this file is not exceptional.

Quite the contrary: delays like these have become the norm and there is currently no concrete measure contemplated by the authorities to address the problem. [ 85 ] The Court is therefore duty-bound to scrutinize the State’s actions – or lack thereof – in order to determine if the situation results from systemic problems or an unjustified lack of zeal. [ 86 ] What concrete measures have been deployed? [ 87 ] Having heard the evidence and the parties’ submissions, the Court concludes that the government’s attitude was lackadaisical.

It did not act with the sense of urgency that the situation warranted. [ 88 ] Clearly, there was an unprecedented upsurge of files sent for assessment. In 2020-2021, the Philippe-Pinel Institute received 60 requests, unlike the previous annual average of 40. While the evidence of the high number is clear, its cause is difficult to ascertain. Recall that in all the other Canadian provinces, including Ontario (which is by far the most populated), the numbers were either stable or in decline. [ 89 ] Ms. Mandeville’s testimony did not shed light on the cause of the upsurge. This is not to be taken as criticism.

It is normal that she does not have all the answers. She was only the messenger. She is the one that receives the requests on the back end. However, as she expressed during her testimony, she is not part of the front-end decision-making process in each prosecutions’ office that selects which files will be referred for assessment. One thing is clear though: at first glance, it is abnormal that in Ontario, a province of 14.5 million residents and large metropolitan centres each grappling with crime, there are far fewer annual requests than there are in Quebec.

On that topic, the Quebec Crown clearly has the unfettered discretionary power to decide which files to submit. That discretion is not reviewable by the courts. [21] Then again, perhaps it may be wise for the DPCP to recalibrate its internal selection criteria. [ 90 ] After all, I am reluctant to presume that Ontarian Crown prosecutors are less mindful than their Quebec counterparts of ensuring the safety of their local communities. [ 91 ] The #MeToo phenomenon was raised at the hearing.

With great respect, despite the explanations given, the Court simply cannot see a link between the #MeToo movement and the number of new applications for remand. [ 92 ] In any event, regardless of the reason for the upsurge, the numbers do not lie. The net result is that the numbers have significantly increased. [ 93 ] At the very least, the problem has taken alarming proportions since the summer of 2020. That was over two years ago. Yet, today, there are less designated psychiatrists than there were at the time, whereas there should have been an increase to respond to the growing influx.

The upsurge in files should have prompted the authorities to react quickly and efficiently. They did not. [ 94 ] In July of 2020, when the Institute was bombarded with 20 requests in 5 weeks, the State should have stepped on the gas to increase the available resources and find other solutions. That was two and a half years ago. [ 95 ] In March of 2021, when the annual review showed that the number of assessments had increased from 40 to 60, the State should have stepped on the gas. That was over a year and a half ago. [ 96 ] Since November of 2021, Ms. Mandeville has been ringing alarm bells.

One year later, the State has still failed to increase any of the Institute’s resources. In fact, resources decreased, given the departure of one of the assessors. [ 97 ] Incidentally, the evidence reveals that even before the unexplained increase in requests (thus before 2020), the average waiting period for an assessment was 120 days. Let us recall that the baseline statutory delay is 60 days .

It appears necessary to remind the authorities that there is no reason to set subpar goals; the State should not be levelling down by seeking to return to timelines that were already inadequate in the first place. [ 98 ] For several years, the Philippe-Pinel Institute has been decrying the fact that the agreement between the Department of Health and the Department of Justice is obsolete and financially unworkable. “Discussions are in the works” but they have yielded nothing concrete. [ 99 ] Even if the caselaw clearly states that the statutory timelines do not serve as straightjackets, this does not justify casually throwing s. 752.1 in the trash bin.

Despite all the flexibility that the caselaw provides, there is a presumption that Parliament does not speak for nothing. In 2008, s. 752.1 C.C. was amended by the Tackling Violent Crime Act . [22] Two changes were brought to the existing regime. First, subsection (3) was added, which allowed for one extension of a maximum of 30 days . Second, subsection (2) was modified, which increased the report’s filing deadline ( i.e. , after completion of the assessment) from 15 to 30 days. [ 100 ] Notably, Parliament left subsection (1) intact. Thus, the baseline statutory deadline remains 60 days. Parliament could have

increased it; it chose not to. [ 101 ] In that sense, I have neither the authority nor the willingness to effectively repeal a subsection of the Criminal Code in order to excuse the State’s inability to respect the law. [ 102 ] Even if the objective of the s. 752.1 C.C. timelines is limited to standardizing and regularizing the information-gathering process, [23] said objective remains important. It should not be trivialized. It aims to control the process by setting a concrete and finite timetable while reducing unjustified delays to a minimum. [ 103 ] To be sure, running a government is no easy task.

Difficult choices must be made. Fundamentally, those decisions are not for the judiciary to make. As expressed so clearly by the Court of Appeal in Ville de Westmount c. Québec (P.G.) , the courts must not intrude into the political arena.

Political decisions are properly left to the governments and legislators. [24] [ 104 ] Similarly, it is not for the courts to play with the public purse strings or to dictate to the executive how to spend taxpayer dollars. [25] I have no intention of meddling in the Quebec government’s management of the criminal justice system, in its allocation of resources, in its payment or recruitment of public workers. In the case at bar, the uncontradicted evidence demonstrates that the method of payment for the psychiatrists at the Institute “clearly constitutes an obstacle to the recruitment” of new assessors.

The government is free to react to such a finding – or not – as it pleases. [ 105 ] That being said, it is very much within the purview of the courts to detect (and denounce, when appropriate) flagrant and systemic violations of statutory provisions that affect both the rights of accused and the integrity of the criminal justice system. [ 106 ] In that sense, if the “solution” advanced by the State is to routinely ignore the clear text of a statute, that is indicative of a serious problem that cannot be ignored. In the case at bar, that is essentially what the applicant and impleaded party are asking me to do.

Alas, I will not endorse such a practice which would, in my respectful view, be an affront to the Rule of Law. [ 107 ] Inaction is not a solution. Inaction is the problem. [ 108 ] To grant an extension in these circumstances would reward and encourage the culture of State complacency towards delays, which should instead be denounced.

Bluntly stated, it is unacceptable that at the time of this hearing, the Attorney General’s Office asks the Court to trust it, declaring that it takes the situation seriously and that it is attributing “adequate resources”, all while simultaneously admitting that it has no concrete solution to propose. [ 109 ] The current general state of our criminal justice system in the district of Montreal is hardly reassuring in that regard.

It is relevant to consider that on a daily basis, several courtrooms of the Criminal Division of the Court of Quebec must unexpectedly close (or only open in the afternoon session) due to staff shortages. Litigants, witnesses and lawyers all bear the brunt. This situation has been decried publicly for several months. Still, any improvement is slow to come. On the contrary, the situation seems to be worsening.

Shortages of courtroom clerks, judicial assistants, official interpreters, stenographers, special constables and correctional officers have all reached paralyzing proportions. [ 110 ] It is hard not to observe a generalized neglect of the justice system. [ 111 ] Ironically and deplorably, on the morning of November 28 th 2022, when this application was scheduled to be heard, my courtroom was closed due to the lack of a clerk. That morning, a staggering 10 courtrooms of the Criminal Division were unable to open and operate.

Files were adjourned, files were delayed, the system was paralyzed… This amounted to a pitiful lottery game whereby litigants (accused, victims, witnesses) missed work, placed their lives on hold, made their way to the courthouse – as required by subpoena , and then waited in the hallway, hoping that they would have the “privilege” of proceeding on the date they had been promised. This is disgraceful. On November 28 th , the staff at the Trial Coordinator’s Office had to reduce itself, yet again, to playing Tetris with the Court’s lists.

Despite their valiant efforts and the fact that judges were trading clerks like some rare commodity, no clerk was made available for our courtroom. The entire day was lost. Wasted. The situation is beyond unacceptable. [ 112 ] This generalized situation makes me far less inclined to trust the government’s promises or to be indulgent towards the severe lack of State resources at the Philippe-Pinel Institute. [ 113 ] The fact that the assessment delays at bar are generalized is an important factor in the analysis.

By analogy, courts always consider if a violation is systemic, deliberate or flagrant when deciding whether or not to exclude evidence under s. 24(2) of the Charter . Similarly, when an accused seeks a stay of proceedings under s. 24(1) of the Charter , the courts again will consider if the violations are systemic, recurring or previously denounced.

After all, courts, in their capacity as guardians of the Charter , must act when they conclude the State has adopted systems that compromise the rights of litigants. [26] [ 114 ] The same reasoning should apply to requests for timeline extensions. [ 115 ] Rather predictably, the parties invoke the challenges caused by the pandemic. Undeniably, COVID-19 created unprecedented hurdles for every level of government and for the daily operation of our justice system. Nevertheless, the pandemic cannot become the perpetual scapegoat. COVID-19 arrived on the scene in Canada in January of 2020.

The virus has been with us for almost three years. The actors in the justice system must adjust to this new reality. [ 116 ] To state the obvious, Ontario was confronted with the same virus. Yet, today, Ontario is not experiencing crippling delays in the completion of s. 752.1 remand assessments. [ 117 ] It makes no sense that an assessment in Quebec takes 8 months, while the same assessment can be done in Ontario within 60 days. [ 118 ] It is equally intolerable that the situation in Quebec will only be under control in three years, while in Ontario, next Monday, the

situation will be entirely normal. The contrast is remarkable. [ 119 ] The DPCP correctly underscores that the issue of prejudice is important. It remains a relevant consideration, unless and until an appellate court formally excludes it, as the Supreme Court did in R. v. Jordan , in s. 11(

b) context. [27] In the meantime, the existing caselaw clearly identifies prejudice as a major factor, sometimes a decisive one. [ 120 ] Nevertheless, in my view, it will not always be determinative. [ 121 ] In the case at bar, I acknowledge that Mr. Minville is facing a very lengthy prison sentence for the offence of attempted murder. Irrespective of the assessment issue, he will remain detained in the medium and long term. Recall that on November 29 th 2022, I endorsed a joint submission by the parties sentencing the accused to a new total sentence of three years imprisonment.

As such, he is currently serving a lengthy sentence. I therefore conclude that the concrete personal prejudice suffered by Mr. Minville would be minimal if the Court were to grant the extension. However, that does not settle the issue. [ 122 ] First of all, the argument is a quasi-universal one. In the overwhelming majority of cases, offenders who are likely to be the object of remand assessments under s. 752.1 C.C. typically receive lengthy penitentiary sentences. The DPCP does not engage DO or LTSO proceedings against accused who face a 4-month sentence.

In other words, the Crown will always be able to contend that “the prejudice is minimal since the accused will remain detained for a long time anyway”. Conceivably, such a blanket argument would systematically neutralize the impact of ss. 752.1(1) and 752.1(3). Such an approach cannot be consistent with Parliament’s intent, nor with the caselaw that states that timeline extensions should be exceptional and individually justified. [ 123 ] Second, it is useful to remind the parties, as the Supreme Court did in Jordan , that society also has an interest in criminal files being resolved with reasonable dispatch.

Section 720 of the Criminal Code echoes this principle: the Court shall conduct a sentence hearing as soon as practicable after the guilty verdict. In the case at bar, the accused pled guilty in July of 2022. Four months have already passed since the verdict. At least six additional months would be needed, simply for a psychiatrist to be assigned to his case. After that, several other months would be required for the drafting of the report. [ 124 ] Kazimierz Ballue, the victim who suffered a near-death experience, is also entitled to his day in court. He has a right to turn the page in this traumatizing

chapter of his life. [ 125 ] With a heavy heart, I therefore reluctantly conclude that it would be inappropriate to extend the timeline in the case at bar. In doing so, I am keenly aware that the primary objective of the DO system is to protect the public. [28] [ 126 ] Realistically, Mr. Minville may well be dangerous and intractable. His record is alarming in the extreme. Recall that when he committed these brutal crimes, he was already governed by a long-term offender supervision order, which is already a rare remedy imposed on particularly dangerous individuals.

The possibility that he be declared a dangerous offender would have been very real; the defence did not even contest the remand request (although the ultimate designation and sentence would be contested). In such circumstances, Mr. Minville’s eventually release from prison may in fact place the community in danger. [ 127 ] Regrettably, that will be the case for almost all offenders facing such assessments. The “target clientele” is comprised of individuals who are – potentially – among the most dangerous for the public safety. The Crown does not present DO requests lightly.

This reality should serve as motivation for the State to allocate proper resources to ensure the efficient functioning of the system. [ 128 ] Unfortunately, based on the evidence before me, this motivation is markedly inadequate. [ 129 ] I recognize that this portion of my analysis conflicts with the approach espoused by Renke J. in R. v. Scrivens . In that decision, having considered the paramountcy of protecting the public, the judge concluded that this factor should always prevail.

Stated otherwise, how, in good conscience, could we conceivably prioritize procedure and mere timelines over public safety? [29] I can easily understand his reasoning, with which I sympathize. In the normal course, I would agree with him. His position is commendable in many respects and it was decidedly appropriate for his jurisdiction at the time he rendered his decision. [ 130 ] However, with respect, Renke J. was not confronted with the disastrous situation that has been plaguing the judicial district of Montreal. The assessment in Scrivens was completed 12 days late. The report was filed 10 days late.

These delays were caused by clerical errors in the court minutes that had accidentally marked the wrong return dates. I can readily understand the indulgence shown by Renke J. and his concern for the public safety.

And yet, even he rendered a 38-page decision explaining why the extension was warranted. [ 131 ] The case at bar is light years away from the scenario in Scrivens . [ 132 ] To grant the State a carte blanche here would amount to encouraging its complacency. [ 133 ] In the grand-balancing of competing interests, I consider that the Crown will still have at its disposal alternate procedural mechanisms by which it may try to protect the public from Minville in the long term.

If the Crown contends that a lengthy isolation is required to prevent reoffending, it could seek a long prison sentence, if not the maximum sentence of life imprisonment (although in that scenario, the offender would still become eligible to parole after a seven-year detention). [30] If the Crown is still dissatisfied, it could try to invoke s. 743.6(1) C.C. and ask the Court to delay parole beyond the seven-year mark, if the conditions are satisfied. [ 134 ] Before reaching my conclusion, I carefully reviewed the recent Court of Appeal decision in R. c.

Lévesque-Paquette , especially the comment at paragraph 80: Ce délai est très long, a priori , même si l’affaire impliquait une demande régie par les arts. 752 et s. C.cr . , en l’occurrence une demande de déclarer l’appelant délinquant à contrôler, qui commande habituellement un temps considérable. Il n’est pas rare, en pareil cas, que le délai de culpabilité-peine soit de 12 à 15 ou 18 mois et même davantage, et ce, notamment en raison des nombreuses démarches et des multiples rapports qui sont requis [with multiple examples cite in the footnote]. [31]

[ 135 ] I do not believe these remarks – read in isolation – should be interpreted as a sign of tolerance or indulgence (and certainly not complacency) by our Court of Appeal towards the excessive delays in the case at bar. Quite the contrary, and the case’s context illustrates my point. First, in Lévesque-Paquette , the Court of Appeal was addressing the issue of reasonable delay post-verdict, through the lens of s. 11(

b) of the Charter . In that context, the Court was analyzing the total delay between the guilty verdict and the final decision on sentence.

Obviously, such a total delay encompasses many other procedural steps and hearings, including: ✔ The drafting and filing of an application for remand for assessment by the Crown (s. 752.1(1) C.C. ); ✔ The completion of the assessment itself, conducted by a psychiatrist or a specialized psychologist; ✔ The drafting and filing of the psychiatric assessment report; ✔ The drafting and filing of an application for a dangerous offender (s. 753 C.C. ) or long-term offender (s. 753.1 C.C. ) designation on the merits; ✔ The preparation of other reports or rebuttal expert assessments; ✔ The contested sentence hearing on the merits; ✔ The deliberation and drafting time for the sentencing judge; ✔ The filing of the sentencing judge’s reasons. [ 136 ] Inevitably, the cumulative effect of all these steps may amount to an overall lengthy sentencing process.

However, the Court of Appeal in no way endorsed delays of 6-8 months for the completion of a psychiatric assessment. Moreover, in all the examples cited by the Court of Appeal in its footnote # 71, which admittedly had very long total delays, extrinsic factors accounted for many of them, which was relevant to the s. 11(

b) analysis. For instance: • R. c. Santamaria : [32] a total delay of under 12 months. Within six months, the 752.1 assessment was already finished, the report was filed and the parties were already proceeding to the hearing on the merits. [33] • R. c. Azevedo : [34] total delay of less than 15 months. In that case, the long delays were explained by the fact that there was also a pre-sentence report and a psychological assessment report. Only after receiving those reports did the judge order the remand and assessment under s. 752.1 C.C.

The latter report was completed and filed within a 4-month period. [35] • R. c. Ouellet : [36] total delay of over 10 months. In that case, the 752.1 assessment, the drafting and filing of the report were all done in less than 2 ½ months. [37] • R. c. Rodrigue : [38] total delay of less than 13 months. The long delay was due in part to the fact that three reports were prepared: a pre-sentence report, a psychological assessment report and an assessment under s. 752.1. Furthermore, even after the s. 752.1 report, the sentence hearing was only held six months later. • R. c.

Bolduc : [39] total delay of approximately 2 ½ years. In that case, there were conflicting expert reports. Moreover, the accused had contested the constitutionality of the Criminal Code provisions and he had agreed to wait for the Supreme Court’s decision in R. v. Boutilier before proceeding. [40] • R. c. G.L. : [41] total delay of over 13 months. In that case, the s. 752.1 assessment, the drafting and filing of the report were all done within a 2 ½-month period. [42] • R. c. Guilbault : [43] total delay of 27-31 months.

That case involved multiple files, a complex procedural history, multiple expert reports and a sentence hearing that was staggered over 9 non-consecutive days. [ 137 ] For these reasons, I do not think Lévesque-Paquette has a direct impact on the question at issue before me. [ 138 ] In conclusion, the Court is not inclined to simply “declare” that this file should be prioritized by the authorities (if such a power even exists). In fact, I am not even willing to make a non-binding recommendation that the Philippe-Pinel Institute treat Mr. Minville’s file before the others in the long waiting list.

In my view, such a measure would be disrespectful to all the victims involved in the other pending files on the waiting list. Moreover, I agree with Ms. Mandeville that attempting to “set priorities” could quickly lead to chaos, with each judge or lawyer subjectively perceiving that their file is more “urgent” than the others. [ 139 ] Finally, the DPCP and the Attorney General’s Office propose, as an alternative remedy, that I grant the extension, all the while formally and firmly denouncing the insufficiency of State resources.

The lawyers contend that such a judicial statement will surely be persuasive enough to provoke concrete changes in the upper echelons of the system. The wheels will be in motion, they assure me. They add that this type of declaratory judgment strikes the proper balance between sending a clear message to the government, while allowing it a reasonable transition time to adjust accordingly. [ 140 ] I firmly reject this proposition, which is purely symbolic, for two reasons.

First, during the hearing, the impleaded party humbly acknowledged that as we speak, the government has no concrete solution to propose to address the dire situation. My decision might have been different if a concrete plan was already in the works and on the verge of being implemented. Alas, that is not the case. Second, the Philippe-Pinel Institute has already been clamouring for help for over two years. Yet, the State chose not to react. In R. v. Jordan , the Supreme Court reminded us that all participants in the justice system must be proactive in the collective effort to reduce delays.

This directive also applies to the country’s provincial governments. Here, the fact that the State would wait until an irate Provincial Court judge slammed his fists on the table by way of a declaratory judgment before acting, is the antithesis of proactivity.

CONCLUSION FOR THESE REASONS , the Court denies the Crown’s request to extend the time for an assessment under s. 752.1 C.C. __________________________________ D. Galiatsatos, J.C.Q. M e Patrick Lafrenière Counsel for the prosecution M e Cynthia Chénier Counsel for the accused M e Alexandre Duval M e Valérie Gourvil Counsel for the Quebec Attorney General M e Annie-Pierre Ouimet-Comtois Counsel for the Philippe-Pinel Psychiatric Institute Hearing dates: November 28 th 2022 (hearing cancelled), November 29 th 2022