2017 QCCQ 12897, 2017 QCCQ 12897

Tymchuk c. R. 2017 QCCQ 12897 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal Division No.: 500-01-146993-164 500-01-152890-171 DATE: September 19, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ Peter John TYMCHUK Petitioner-Accused v. Her Majesty the Queen Respondent-Prosecutor ______________________________________________________________________ JUDGMENT on a Motion for a Stay of Proceedings pursuant to Sections 7, 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ INTRODUCTION [ 1 ] Petitioner is charged with two counts of breaking and entering, contrary to section 348(1) (b)(

d) of the Criminal Code . [ 2 ] File 500-01-146993-164 relates to an incident that took place on September 12, 2014 (the September event ). Petitioner appeared for the first time in relation to that charge on January 10, 2017. [ 3 ] File 500-01-152890-171 relates to an incident that took place on August 11, 2014 (the August event ). Petitioner’s first appearance in relation to that charge was on March 31, 2017. [ 4 ] Petitioner is seeking a stay of proceedings on the grounds that his rights protected by sections 7 and 11(

b) of the Canadian Charter of Rights and Freedoms (the Charter ) have been violated. More specifically, he alleges that the pre-trial delay incurred between the dates of the alleged offences and the dates that he was arraigned violates his right to be tried within a reasonable time, as well as his right to a fair trial, entitling him to a stay of proceedings. [ 5 ] The Motion was heard on August 29, 2017. Petitioner did not present any witnesses. Sergeant detective (S/D) Robert Ferland testified for the Respondent. ISSUES 1) Has Petitioner’s right to a trial within a reasonable time, protected by

section 11(

b) of the Charter , been violated on account of the delay between the date of the alleged crimes and the laying of the charges? 2) Has Petitioner’s right to a fair trial, protected by

section 7 of the Charter , been violated on the basis of such delay? 3) If so, should a stay of proceedings be entered pursuant to section 24(1) of the Charter ? OVERVIEW [ 6 ] On August 11 and September 12, 2014, two “break and enters” occur in two different dwelling houses. At both crime scenes, the police obtain items which potentially contain the DNA of the individual who perpetrated the theft. [ 7 ] On December 10, 2014, the Laboratoire de sciences judiciaires et de médecine légale (the laboratoire ) produces a report in relation to each event.

Both reports indicate that the DNA found at the crime scenes corresponds to that of Petitioner [1] . This information is obtained by comparing the DNA found at the crime scenes to DNA samples contained in the national DNA databank. In fact, Petitioner’s DNA was amongst the specimens included in such databank and matched the DNA taken from the objects at crime scenes. [ 8 ] At some point following December 10, 2014, S/D Ferland receives the reports of the laboratoire attesting to the match. He puts

the reports in “his box”, as he is always one and a half to two years behind in his work, and he always works with the oldest files first. [ 9 ] In the fall of 2016, the two reports involving Petitioner finally get to the top of the pile in S/D Ferland’s box and he begins working on them. [ 10 ] On October 18 and 19, 2016, S/D Ferland speaks with the victims of the two crimes. His objective is to ascertain whether there is any possible innocent explanation for the presence of Petitioner’s DNA at the crime scenes.

Both victims confirm that there is no legitimate reason for Petitioner to have been present in their homes. [ 11 ] On November 10, 2016, S/D Ferland attends court and obtains warrants authorizing him to take a bodily substance from Petitioner for the purposes of forensic DNA analysis in relation to the two incidents. [ 12 ] On November 17, 2016, S/D Ferland meets with Petitioner, who was detained at that time at the Ste.

Anne des Plaines penitentiary (in relation to unrelated matters) and obtains a blood specimen which he, in turn, sends for analysis to the laboratoire. [ 13 ] S/D Ferland generally waits for the second confirmation from the laboratoire ̶̶ obtained by using the recently obtained DNA ̶ before sending the files to the Director of Criminal and Penal Prosecutions (the DCPP).

This is done in order to protect the rights of the potential accused. [ 14 ] However, on November 17, 2016, following his meeting with Petitioner, S/D Ferland receives a call from Petitioner’s attorney requesting that he send the file to court prior to receiving the results of the analysis to be done by the laboratoire . [ 15 ] As such, on or around November 21, 2016, S/D Ferland sends the file in relation to the two incidents to the DCPP and requests that charges be authorized. Included with the information sent to the DCPP is a note mentioning his call from Petitioner’s attorney.

The note reads as follows: Le 17 novembre 2016, j’ai reçu un appel de l’avocate de l’accusé, Me Audrey Amzallag, qui me demande de déposer le dossier à la cour sans attendre le retour de l’expertise du labo pour la deuxième confirmation. Vu que l’accusé est en prison, elle désire régler le dossier rapidement. [2] [ 16 ] On November 23, 2016, the DCPP authorizes a charge against Petitioner in relation to the September event [3] .

There is no explanation as to why the DCPP does not authorize a charge in relation to the August event at the same time, given that the evidence in relation to both events is all contained in the report which had been forwarded to the DCPP on November 21. [ 17 ] Petitioner is arraigned in relation to the September event on January 10, 2017. The case is put off pro forma to February 16, 2017. [ 18 ] On February 16, 2017, Petitioner enters a plea of guilty and the sentencing hearing is postponed to March 16, 2017.

At that time, Petitioner’s attorney explains that another charge - in relation to the August event - is awaiting authorization and that Petitioner wishes to deal with both files at the same time. On March 16, the additional charge has still not been laid and the file is put off to March 31, 2017. [ 19 ] On March 31, 2017, Petitioner is arraigned in relation to the August event . The charge had been authorized on March 21, 2017 following discussions between Petitioner’s attorney and the DCPP. Petitioner opts for a trial before a judge of the Provincial Court and enters a plea of “not guilty”.

His attorney announces to the Court that she will be presenting a Motion alleging that the pre-charge delay in relation to both files violated Petitioner’s constitutional rights. The files are put off to June 19 for the presentation of the Motion. [ 20 ] On June 19, the Motion is postponed to August 29 due to the absence of S/D Ferland. The Motion was heard on August 29. ANALYSIS

Section 11(

b) The law [ 21 ]

Section 11(

b) of the Charter reads as follows: Any person charged with an offence has the right (

b) to be tried within a reasonable time; […]. [ 22 ] The case law is consistent in stating that the 11(

b) analysis begins with the charge [4] . This was recently reiterated by the Supreme Court of Canada in Jordan [5] . In other words, pre-charge delay is not covered by

section 11 (b). [ 23 ] Pre-charge delay may, however, in some cases, be a relevant factor in assessing post-charge delay for the purposes of a

section 11(

b) application. Application

[24] Petitioner has not complained about the post-charge delay in this matter, for obvious reasons. [25]

Section 11(

b) does not apply to pre-charge delay. [26] This is sufficient to settle the first issue before the Court: Petitioner’s rights protected by

section 11(

b) of the Charter have notbeen violated.

Section 7 The law [27]

Section 7 reads as follows: Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. [28] This provision guarantees that an accused person has the right to a fair trial and the right to make full answer and defence. In a series of cases beginning with Mills[6], the Supreme Court has explained that pre-charge delay is relevant under

section 7 to the extentthat such delay effects trial fairness. In other words, it is not the length of the delay which matters but rather whether such delay has a bearing upon the fairness of the trial[7]. [29] The Supreme Court has made it clear that a trial judge must not stay proceedings simply based on lengthy precharge delay.Such an approach would be at odds with the absence of limitation periods for the laying of criminal charges for indictable offences. Thiswas expressed as follows by Justice Hoegg of the Newfoundland and Labrador Court of Appeal, in his dissenting reasons in the case of R. v. Hunt[8].

Such reasons were adopted by the Supreme Court of Canada in allowing the appeal from the stay of proceedings that had been confirmed by the majority of the Court of Appeal[9]. Justice Hoegg stated the following: 81 Subject to a few specific exceptions, the laying of indictable criminal charges is not subject to limitation periods (Rourke). (See alsoR. v.

Finta, (SCC), [1994] 1 S.C.R. 701.) Limitation periods in criminal law are the province of parliament, subject tojudicial scrutiny only for constitutional compliance and the ability of courts to control their own processes to protect accused personsthrough the doctrine of abuse of process. The invocation of

section 7 of the Charter to assist an accused person whose regularlyconstituted charges involve significant pre-charge delay has been carefully confined to few and unusual circumstances wheredemonstrated prejudice to his or her fair trial rights or abuse of process is found. [30] Furthermore, the case law is consistent in asserting that the mere possibility of prejudice is insufficient to ground a finding that pre-charge delay has undermined the right of the accused to make full answer and defence[10].

The accused bears the burden of provingthat the passage of time caused by the lengthy investigation has caused him or her a real prejudice which impacts his or her right to make full answer and defence[11]. [31] It has also consistently been held that subject to the doctrine of abuse of process, “courts are not authorized to supervise the operation and efficiency of police investigations”[12]. Application [32] The incidents at the basis of the charges faced by Petitioner took place in September and August 2014, and Petitioner wasarraigned in January and March 2017.

Petitioner has the burden of proving that this passage of time before the laying of the chargescaused him prejudice. [33] Petitioner did not testify nor did he submit an affidavit. There is therefore no evidence of prejudice for the Court to consider. His lawyer suggested that the passage of time has affected his memory and his ability to explore other paths or share his version ofevents with his attorney.

These vague affirmations are highly speculative and do not satisfy in any way the burden on Petitioner to showthat the passage of time has affected his fair trial rights. [34] This finding would be enough to dispose of this matter. However, the Court feels compelled to address another aspect ofPetitioner’s submissions. [35] Petitioner submits that the police acted in bad faith. He argues that it would have been easy to complete the investigationduring the weeks and months following the incidents.

He suggests that the authorities should have met with potential witnesses and thecomplainants in order to build their case, and did not necessarily have to wait for the results of the DNA analysis. [36] Although in an ideal world, it would be preferable for all investigations to proceed with celerity, the lack of celerity in this caseis in no way an indication of bad faith but simply a reflection of the limited resources available to police services.

Furthermore, it is notfor Petitioner or for the Court to second-guess the way police services choose to approach their investigations. [37] S/D Ferland testified with honesty and professionalism that the only reason why this case took so long was because he wasalways one and a half to two years behind in his work. When cross-examined as to why, he explained that at the Centre opérationnelnord where he works, he is the main investigator doing DNA work. He had been doing this work almost full time since 2006, when hetook a three or four day course on how to write DNA warrants.

Only individuals who have taken that course are authorized to requestthe issuance of such warrants. [38] When S/D Ferland received the letters from the laboratoire, presumably in December 2014, indicating a “hit”, he simply filedthem away. He did not know Petitioner, had never heard of Petitioner, and did not know the Petitioner was at that time detained in

relation to other offences. [ 39 ] The delay in the treatment of Petitioner’s files are for reasons completely extraneous to him. Again, while one might wish that files could be dealt with more expeditiously, or that more personnel could be attributed to particular files, bad faith played absolutely no role in the delay in sending the files to the DCPP for authorization. [ 40 ] Petitioner also took issue with the fact that the DCPP did not authorize both charges at the same time. There is no explanation as to why this occurred. There is also not an iota of evidence that this was due to bad faith on anyone’s part.

In fact, as soon as the situation was brought to the attention of the DCPP, measures were taken to accelerate the authorization of the second charge. [ 41 ] Petitioner’s right to a fair trial, protected by

section 7 of the Charter , had not been violated. FOR THESE REASONS, THE COURT DISMISSSES the Motion for a Stay of Proceedings. __________________________________ SUZANNE COSTOM, J.C.Q. Me Audrey Amzallag Attorney for Petitioner-Accused Me Alexis Dinelle Attorney for Respondent-Prosecutor Date of hearing: August 29, 2017