2014 QCCQ 874, 2014 QCCQ 874

Moar c. R. 2014 QCCQ 874 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF VAL-D'OR Criminal and Penal Division Nos.: 615-01-015085-098 615-01-015241-097 DATE: February 14, 2014 ( February 3, 2014 ) ______________________________________________________________________ PRESIDING: THE HONOURABLE RENÉE LEMOINE J.C.Q. ______________________________________________________________________ TAMARA MOAR Applicant v.

THE QUEEN Respondent ______________________________________________________________________ RECTIFIED JUDGMENT ______________________________________________________________________ I - INTRODUCTION [ 1 ] The accused seeks an order staying the above proceeding pursuant to s. 24(1) of the Canadian Charter of Rights and Freedom (the Charter ). The basis of application is the alleged infringement of the accused’s s. 11(

b) rights under the Charter. [ 2 ] The following are the central facts giving rise to the application. [ 3 ] The accused is charged with the offences of impaired driving pursuant to ss. 253(1) (

a) and 255(1) of the Criminal Code and refusal to comply with a demand pursuant to ss. 254 (

b) and 255(1) of the Criminal Code , on or about December 14, 2008. [ 4 ] On that date, she was arrested and then released with an appearance notice for March 23, 2009. The accused refused to sign the appearance notice issued by the police officer. [ 5 ] On February 19, 2009, Justice of the Peace Hélène Cartier confirmed the appearance notice. [ 6 ] On March 23, 2009, the accused failed to appear before the court in accordance with the appearance notice. A warrant for the arrest of the accused was issued.

However, the arrest warrant was not executed until February 20, 2013. [ 7 ] On December 17, 2009, the accused was informed by phone that a warrant for her arrest was issued and that she had to report to the nearest police station. [ 8 ] In fact, the accused did that and presented herself to the Waskaganish police station. They told her that they could not do anything for her because they were not in possession of the warrant.

II - POSITIONS OF THE PARTIES [ 9 ] The accused’s position is that the 47-month period is prima facie unreasonable and that she has been deprived of her right to have a fair trial within a reasonable time, pursuant to s. 11(

b) of the Charter . In support of this position, the accused contends that she has suffered prejudice as a result of that delay. The accused points out that, throughout the period between March 23, 2009 and February 20, 2013, she was living in the community of Waskaganish, James Bay. [ 10 ] Counsel for the accused submits that the evidence establishes that the accused did nothing to delay the hearing of the charges of which she is accused and suffered a prejudice as a result of the delay.

The accused’s fair trial interests are said to be jeopardized to such a degree that no remedy is capable of removing the prejudice other than a stay of proceeding. [ 11 ] In response, the Crown's position is that the applicant's right pursuant to s. 11(

b) of the Charter to be brought to trial within a reasonable time has not been infringed. [ 12 ] The Crown's position is that the applicant's knowledge that there was a warrant for her arrest and her decision to let time go by demonstrates a lack of concern that this matter be dealt with as expeditiously as possible. [ 13 ] The question of prejudice to the accused is also in dispute. The Crown submits that the accused did not suffer prejudice from the length of the delay. According to the Crown's position, there is no evidence of such prejudice in this case.

III – THE LAW [ 14 ] The inquiry as to what constitutes an unreasonable delay for purposes of s. 11(

b) of the Charter must evaluate four factors: 1. the length of the delay; 2. waiver of any time periods; 3. the reason for the delay, including: (

i) inherent time requirements of the case; (ii) actions of the accused; (iii) actions of the Crown; (iv) limits on institutional reasons; and

v) other reasons for the delay; and 4. prejudice to the accused. [1] [ 15 ] In Morin , the Supreme Court established time ranges for proceedings in the provincial court of 8 to 10 months and in the trial court of 6 to 8 months which are, in this case, within the acceptable range.

IV - ANALYSIS The length of the delay [ 16 ] The applicant submits that a delay of 47 months between the warrant of arrest issued on March 23, 2009 and its execution on February 20, 2013 is unreasonable. [ 17 ] The Court believes that no action or conduct on the part of the accused in this application contributed to the delay period herein. An accused is under no obligation to make herself available to the police or authorities for the execution of an arrest warrant.

It is the Crown's responsibility through its agents, the police, to find an accused and either execute an arrest warrant or serve a summons compelling the individual to come to court to answer charges. In the present case, the applicant lives in the small community of Waskaganish. She was easily to found.

Moreover, she presented herself to the police of Waskaganish and they did nothing to get in touch with the S.Q. police force. [ 18 ] According to the time range set by Askov and Morin for proceedings in the provincial court, a delay of 8 to 10 months would be acceptable in this case. [ 19 ] Obviously, a delay of 47 months to execute an arrest warrant without explanation for the delay is unreasonable. It is clearly outside of the acceptable range set by the Supreme Court for this kind of offence. V – THE PREJUDICE [ 20 ] In Godin , the question of prejudice was analyzed by the Supreme Court of Canada.

The Honourable Justice Cromwell, writing for the majority, stated: […] [30] Prejudice in this context is concerned with the three interests of the accused that s. 11(

b) protects: liberty, as regards to pre-trial custody or bail conditions; security of the person, in the sense of being free from the stress and cloud of suspicion that accompanies a criminal charge; and the right to make full answer and defence, insofar as delay can prejudice the ability of the defendant to lead evidence, cross-examine witnesses, or otherwise to raise a defence. See Morin , at pp. 801-3. [31] The question of prejudice cannot be considered separately from the length of the delay.

As Sopinka J. wrote in Morin , at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the more likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. […] [ 21 ] The Court believes, in the set of facts of the present case, that there was inferred prejudice as a result of delay.

VI - CONCLUSION [ 22 ] Given that the quality of recollection and evidence tends to deteriorate over time, the courts have recognized that delayed trial results in at least a risk of prejudice to the right to a fair trial that must be factored into the s. 11(

b) analysis. See Regina v. Godin , paras. 35, 37 and 40 . The Court therefore finds that some prejudice should be inferred in this area.

Balancing individual and societal interests [ 23 ] In this case, the overall delay is 47 months. The accused's actions did not contribute to the delay. The delay exceeds the guideline of 8 – 10 months for provincial court trials. [ 24 ] The case is an apparently uncomplicated one of drinking and driving. [ 25 ] The Court concludes that the accused has demonstrated, on a balance of probabilities, that s. 11(

b) of the Charter has been infringed. [ 26 ] The delay in this case was unreasonable. Considering the prejudice inferred by this kind of delay, there is no other remedy than a stay of proceeding. [ 27 ] FOR THOSE REASONS, THE COURT: [ 28 ] GRANTS the application; [ 29 ] ORDERS a stay of proceeding. __________________________________ RENÉE LEMOINE J.C.Q. Mtre. Claude Beaudet Counsel for the applicant Mtre. François Parent Counsel for the respondant Date of hearing: November 14, 2013