r v. NICHOLAS COOK, 2017 QCCQ 9785

R. c. Cook 2017 QCCQ 9785 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF LONGUEUIL CITY OF LONGUEUIL « Criminal and Penal Division » N o . 505-01-115575-132 DATE: June 28 th , 2017 ______________________________________________________________________ BEFORE THE HONOURABLE: ANN-MARY BEAUCHEMIN, Q.C.J. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. NICHOLAS COOK Accused-Applicant ______________________________________________________________________ REVISED RULING ON A Jordan MOTION FOR STAY OF PROCEEDINGS UNDER Sections 7, 11

b) AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS [1] ______________________________________________________________________ Note that it is forbidden to publish, broadcast or transmit in whatever fashion any information allowing to identify the complainants in virtue of a publication ban rendered in accordance with

section 486.4(1) of the Criminal Code . CONTEXT [ 1 ] The accused-applicant (here-after the “accused”) is charged with two counts of sexual assault pursuant to

section 271a) of the Criminal Code relating to two adult female complainants, previously known to him. [ 2 ] At trial, the accused claims his right to be tried within a reasonable time has been infringed:

section 11b) of the Charter . He is asking for a stay of the proceedings accordingly. [ 3 ] These charges arose before the Jordan [2] Supreme Court ruling in July 2016. Therefore, a contextual and flexible application or the new framework is required with due sensitivity to the parties’ reliance on previous state of the law . [ 4 ] The charges are taken by way of indictment and a preliminary inquiry was held.

Therefore, the 30 months presumptive ceiling applies: Jordan , par. 46 ; Cody [3] par. 20. [ 5 ] The total delays between the laying of the charges (July 10 th , 2013) and the actual or anticipated end of trial (October 10 th , 2017) represent 51.6 months or 1554 days (roughly 4 years and 3 months). [ 6 ] The defence argues net delays amount to 44.3 months . Prosecution claims they are slightly under the ceiling; 29.9 or 24.1 months depending on their qualification. [ 7 ] The proceedings in this case are definitely not a model of efficiency and celerity of our criminal justice system.

Suffice to say, trial judges heard the SCC’s message loud and clear and are currently acting upon it. This being said, let’s not forget it also takes time for real changes to happen. [ 8 ] On June 28 th , 2017, this Court summarily dismiss the application (orally) saying that even tough delays were longer than they should have been, this was not a proper case to stay the proceedings. After subtracting different periods ( waiver , defence delays and discrete events ) and applying the transitional measure for cases already in the system , the net delays in this case remained reasonable in the circumstances.

[ 9 ] This Court announced more elaborate written grounds would follow before trial resumes next October [4] . Here they are. QUESTION IN DISPUTE [ 10 ] Applying the new Jordan/Cody framework (and its transitional exceptional circumstances measure for cases currently in the system), should the delays be considered unreasonable under sections 7 and 11b) of the Charter and if so, should this Court order a judicial stay of the proceedings as a remedy according to paragraph 24(1) of the Charter ? [ 11 ] Does the net delay exceed the 30 months presumptive ceiling provided by the new Jordan framework?

If so, did the prosecution discharged its onus in order to rebut the presumption of unreasonableness on the basis of exceptional circumstances? Should this Court subtract delays on account of discrete events ? Does this case qualify as a particularly complex case? Bottom line, does the transitional exceptional circumstance test as explained again in Cody justify the delays?

THE PARTIES SUBMISSIONS The Accused [ 12 ] The accused claims his right to be tried within a reasonable time, as protected by sections 7 and 11b) of the Charter , has been infringed. [ 13 ] He’s seeking to obtain a judicial stay of the charges pressed against him. [ 14 ] He argues delays should be calculated and qualified in the following manner: 14.1. Overall Delay: 51.6 months between the laying of the charges (July 10 th , 2013) and the actual or anticipated end of trial (October 10 th , 2017); 14.2. Defence waived Delays: None ; 14.3. Delays caused by defence actions: 5.3 months (or 159 days); 14.4.

Exceptional circumstances/discrete events: 2 months (or 60 days); 14.5.

Remaining Delay: 44.3 months . [ 15 ] Since the remaining delay of 44.3 months exceeds the 30 months ceiling set by the SCC ruling in Jordan , the delays would be presumptively unreasonable. [ 16 ] Defence claims there can be no valid explanation or justification for the long delays in this case. [ 17 ] According to defence counsel, there were problems with timely disclosure of evidence , delays with completion of the preliminary inquiry and additional Institutional delays waiting for a suitable trial date. [ 18 ] The applicant submits he suffered from prejudice because of these lengthy delays.

He claims sustaining stress, anxiety, stigmatization, loss of weight, restrictive bail conditions and also a financial burden all linked to the unreasonable delays in his file. [ 19 ] He submits his rights to life, liberty and security and his right to be tried within a reasonable time under sections 7 and 11b) of the Charter were violated. [ 20 ] Therefore, the only acceptable remedy would be an Order to stay the proceedings against him.

The Prosecution [ 21 ] Not surprisingly, the prosecution sees things differently. [ 22 ] According to her, after subtracting delays caused by the defence or waived by the accused; and other delays attributed to exceptional circumstances ( discrete events) that were reasonably unforeseeable or reasonably unavoidable, the net delay would fall just under the presumptive 30 months ceiling ( 24.1 months or 29.9 months depending how one qualifies them). [ 23 ] Although, she recognise the initial gap in the peacekeepers’ material submitted to parties (technical problem with Mrs.

B.’s video statement/DVD given to both defence and prosecution malfunctioning and missing 5 minutes at the end), she claims delays surrounding the completion of the preliminary hearing were caused by the defence’s lack of diligence and should be subtracted of the overall delays. [ 24 ] According to the prosecution, M e Schneider, the accused former counsel, failed to notify the Crown and/or the Court in a timely manner about the technical problems he encountered while viewing Mrs. B.’s videotaped statement.

The first preliminary hearing postponement (August 15t h , 2014) could have been avoided since both complainant and the accused were present and the prosecution was prepared and ready to proceed. [ 25 ] Also, she adds the next postponement of the preliminary hearing (on November 17 th , 2014) was mostly caused by the same situation even though she took steps to avoid it and was proactive. Indeed, she called her learned friend three days before the hearing to verify whether the problem had been solved.

She was not made aware of any remaining difficulties that day. [ 26 ] On November 17 th , 2016, when the defence raised the issue again, she asked to proceed in spite of this ongoing situation and offered to suspend the hearing before Justice Marleau in order to allow defence counsel to view privately with his client the master video

statement (properly functioning) in possession of the investigator that day. It apparently last 18 minutes. Only the last 5 minutes were missing or could not have been viewed previously by both parties. [ 27 ] Prosecution argues the fact that one of the complainant (Mrs. A.), who at the time was 7 months pregnant, felt sick and was unable to testify later in the afternoon , should be considered under the discrete events category and therefore subtracted. [ 28 ] Consequently, the net delays remain within the acceptable range or slightly under the presumptive ceiling according to prosecution.

Therefore, the defence bears the burden of demonstrating his client’s rights were infringed. [ 29 ] In the event, the Court concludes the net delays effectively exceeds the 30 months presumptive ceiling, the transitional exceptional circumstance measure should apply favorably because charges were laid prior to the release of the Jordan ruling.

Bottom- line, the case “was in the system” before Jordan’s release [5] . [ 30 ] She reminds the Court that the parties’ behavior cannot be judged strictly against a standard of which they had no notice of and that change takes time : Jordan , par. 96 and 97 . [ 31 ] She claims, the prosecution can rely on the transitional exceptional circumstance because the time this case took to reach trial was justified based on the parties’ reasonable reliance on the law as it previously existed: Jordan , par. 96 . [ 32 ] She disputes the alleged prejudice suffered by the accused.

Also, she insists the charges are serious (sexual assault) and should be decided on their merits in society’s best interest. Furthermore, according to her, evidence of “real prejudice” is far from compelling. She reminds this Court that both factors were important considerations under the former Morin framework. [ 33 ] For the sake of brevity, this Court intends to address the factual background in its analysis. ANALYSIS The Jordan Framework [ 34 ] Shortly after the debates last May, on June 16 th , 2017, the SCC rendered its decision in the matter of R. v.

Cody , 2017 SCC 31 , in which it restored the trial judge’s decision to order a stay of proceedings on drug related charges involving a remaining delay of 36.5 months. [ 35 ] The SCC reiterated the Jordan framework and also offered further explanations and precisions on its application, especially pertaining to the three components of exceptional circumstance s (first discrete events, second particularly complex cases and transitional considerations as a third form, for cases already in the system before Jordan’s release). [ 36 ] This Court had the benefit to read it before rendering orally this decision on June 28 th , 2017. [ 37 ] Cody reminds us yet again , that every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time , as provided by

section 11b) of the Canadian Charter of Rights and Freedoms . [ 38 ] A proactive approach is required from all participants in the system. We should aim to prevent and minimize delay before it gets problematic. The presumptive ceilings are here to stay: 18 months for cases tried in provincial courts (summary infractions and

section 553 absolute Jurisdiction infractions) and 30 months for cases tried in superior courts (including here in Quebec, indictment charges tried before a Court of Quebec judge sitting alone). [ 39 ] Cody mentions that when properly applied , the Jordan framework allows sufficient flexibility . [ 40 ] The first step is to calculate the total delay from the charge to the actual or anticipated end of trial ( Jordan , par. 60 ). [ 41 ] After, delay attributable to the defence must be subtracted ( Jordan , par. 60 ). [ 42 ] If the net [or remaining] delay falls below the ceiling […] then the onus is on the defence to show that the delay is unreasonable ( Jordan , par. 48 ; Cody , par. 23 ). [ 43 ] If the net delay exceeds the ceiling: […] then the delay is presumptively unreasonable.

To rebut this presumption, the Crown must establish the presence of exceptional circumstances. If it cannot, the delay is unreasonable and a stay will follow. ( Jordan , par. 47 ; Cody , par. 24 ). [ 44 ] Where charges pre-date Jordan and the delay remains presumptively unreasonable after deducting defence delay and accounting for and considering exceptional circumstances, the Crown may nevertheless demonstrate that the transitional exceptional circumstance justifies the delay ( Jordan , par. 95 and 96 ; Cody , par. 25 ).

Overview of the Case [ 45 ] The events allegedly occurred on or about July 9 th , 2013 , in Kanhawake, Quebec. The accused was arrested on that same day. [ 46 ] The following day ( July 10 th , 2013 ), he first appeared in custody before the Court for his arraignment and plea. [ 47 ] His bail hearing was scheduled two days later ( July 12 th , 2013 ) and following it, he was released on bail. He had to abide with certain conditions, but eventually some of them were varied afterwards.

[ 48 ] The case was remanded until October 29 th , 2013 pro forma in room 1.28. Up to then, it was [6] inherent delays for parties to prepare their case. On that date, defence elected for a jury trial and requested a preliminary inquiry, asking for 9 witnesses, including both complainants. It was scheduled for August 15 th , 2014 . Incidentally, the remand to stand trial was not contested [7] . ( 290 days : institutional delays ) [ 49 ] On August 15 th , 2014 , (before justice Marleau) all witnesses were present, including both complainants, but the preliminary inquiry was postponed upon defence request .

The DVD containing the video statement of one of the complainant (Mrs. B.) was apparently incomplete. It was missing the last 5 minutes of 18. Prosecution agreed to postpone the matter saying it would remedy the situation. Another attempt was scheduled for November 17 th , 2014. (*For reasons to come, this Court finds these 94 days should be attributed to defence and/or considered an implicit waiver ) [ 50 ] On November 17 th , 2014 , the preliminary hearing was delayed for the same technical problems arising again (with the same video). Defence was not inclined to proceed for the same reasons.

Witnesses were present. Justice Marleau suspended the hearing allowing M e Schneider and his client to watch the missing portion of the video in a cubicle or elsewhere outside the courtroom and resume afterwards. Defence first agreed but eventually declined the proposal saying he felt uneasy doing so in the prosecution’s office. In any event, later in the afternoon when the case was finally ready to proceed, one of the complainants (Mrs. A.) felt sick and was unable to do so. She was 7 months pregnant at the time and had been waiting since morning to testify.

Consequently, the hearing was rescheduled again for May 12 th , 2015. (*For reasons to come, this Court finds these 176 days should be considered under the discrete events category) [ 51 ] On May 12 th , 2015 , preliminary inquiry was postponed a third time because defence counsel was unavailable that day. Witnesses had been notified a day or two in advance and their subpoena were cancelled. On that day, M e Lacombe took possession of the latest defence DVD copy (of Mrs. B.’s complete statement).

M e Potvin claims it had been available at the prosecution office since November 2014 to M e Schneider’s knowledge. ( 56 days : defence ) [ 52 ] On July 7 th , 2015 , the matter was pro forma before justice Godri. M e Duquette appeared on behalf of defence and the preliminary inquiry was scheduled for February 22 nd , 2016 . The transcripts are very brief. Defence counsel did not ask for any sooner date or otherwise express any concerns about delays.

Nor did the accused himself. (For reasons to come, this Court finds these 230 days should be attributed this way: half defence /half institutional ) [ 53 ] On February 22 nd , 2016 , before Justice Pierre Bélisle, Mrs. A. testified and was cross-examined by defence. The preliminary hearing was continued (on May 2 nd , 2016) because the other complainant (Mrs. B.) was not present that day. She had not been located by authorities, nor served with a subpoena. ( 70 days : prosecution ) [ 54 ] On May 2 nd , 2016 , Mrs. B. was still not subpoenaed notwithstanding M e Potvin’s instructions.

Apparently, it was an administrative error from the prosecution’s office. Defence did not object the postponement and strategically accepted prosecution’s offer to verify promptly Mrs. B.’s interest in the file and take position the next court date providing his client would not have to attend. Justice Bélisle agreed and rescheduled for May 24 th , 2016 pro forma to set a date if needed. ( 22 days : prosecution ) [ 55 ] On May 24 th , 2016 , prosecution confirmed Mrs. B.’s willingness to testify.

Continuation of the preliminary hearing was fixed to July 25 th , 2016 . ( 62 days : prosecution ) [ 56 ] On July 25 th , 2016 , preliminary inquiry was completed and the accused remanded to stand trial. The case was set on next opening of the term before the Superior Court (on September 9 th , 2016) since there was no re-election by the accused [8] . However, the case was brought back on the docket on August 23 rd , 2016 for re-election with the prosecution agreement (

section 561 of the Criminal code ). (For reasons to come, this Court finds these 29 days should be attributed to the defence) [ 57 ] A case management was fixed on October 7 th , 2016 and it proceeded as scheduled. ( 45 days : institutional ) A two-day trial was set for January 19 and 20 th , 2017 . [ 58 ] The Motion for stay of proceedings was first introduced on October 31 st , 2016 [9] . It was supposed to be debated on November 22 nd , 2016 . One day was scheduled for that purpose.

The two-day trial dates (January 19 th and 20 th , 2017) were kept available if needed. [ 59 ] However, on November 22 nd , 2016 , the accused asked for postponement of his application because his counsel (at the time) was ill and unavailable to argue the case. The same two-day trial dates (January 19 th and 20 th , 2017) were still kept available. Accordingly, the period between October 7 th , 2016 and November 22 nd , 2016 can be considered institutional delay ( 45 days : institutional ).

But, it can no longer be attributed to systemic or institutional delays when defence counsel is no longer available for trial, as it was the case here. [ 60 ] On January 12 th , 2017 , the case was put on the docket in order for the defence to request a cancellation of the January 19 th and 20 th trial dates and ask for postponement. M e Dubois informed this Court M e Schneider would not return to work until the beginning of February 2017. He then asked for a next court date in March for some leeway. The accused was present and confirmed he understood and agreed with the request.

He wanted to wait for M e Schneider’s return. Accordingly, the case was remanded on March 20 th , 2017 pro forma to set another trial date. (Between November 22 nd , 2016 and January 12 th , 2017 = 51 days : defence waiver or discrete events; either of them have to be subtracted anyway ) [ 61 ] The accused knowingly chose to wait his counsel’s return expecting a recovery in the months to come. Unfortunately, it was not

the case. On March 20 th , 2017, another attorney (M e Lacombe) took over the accused defence. [ 62 ] Nonetheless, this Court finds it remains a clear and non-equivocal waiver of that period. ( 67 days : between January 12 th and March 20 th , 2017) [ 63 ] M e Cynthia Lacombe needed time to prepare properly and was also busy dealing with other cases.

Defence chart concedes she was not ready before July 2017. [ 64 ] This Court made arrangements to hear this Jordan application on May 16 th , 2017 in addition to other cases already scheduled that day. [ 65 ] On April 19 th , 2017 [10] , another substitution of defence counsel occurred. M e Marie-Pier Boisvert took over with the accused consent since M e Lacombe was no longer available (she was apparently busy with other cases).

In these circumstances, it can hardly be considered institutional delays . (Between March 20 th and May 16 th , 2017 = 57 days : defence because both prosecution and Court were ready to hear the case but defence was not) [ 66 ] On May 16 th , 2017 , the accused tendered his testimony, particularly on the issue of prejudice. In addition, parties submitted documentary evidence (transcripts of past court dates, file’s minutes, emails, letters, etc.). [ 67 ] After the debates, this Court reserved its decision until June 28 th , 2017 .

This used to be inherent delays , it’s now is included in the presumptive ceiling. [ 68 ] As mentioned earlier, on June 28 th , 2017, this Court summarized its decision for declining the Jordan motion and offered the parties its apologies for not being able to prepare more elaborate written grounds in that short timeframe. [ 69 ] So, the trial is currently scheduled to proceed for two days on October 10 th and 11 th , 2017.

Applying the Jordan Framework to this Case [ 70 ] Parties agrees that it’s the 30 months presumptive ceilings applies in this case. [ 71 ] Here, the global delay amounts to 51.6 months (or 1553 days) between the laying of the charges (July 10 th , 2013) and the actual or anticipated end of trial (October 10 th , 2017). [ 72 ] Both parties submitted their charts to identify, qualify and calculate the delays in this case [11] . Their differences are mainly on five periods totaling 23.3 months [12] .

It pertains to mostly how to qualify delays encountered in the completion the preliminary inquiry because of the video disclosure issue, the postponement of the trial last January and the delay in rescheduling the coming trial in October . [ 73 ] What periods of this total delay should be deducted or subtracted if any? [ 74 ] Firstly, I propose to deal with delay attributed to the defence, including any periods waived by the accused whether explicitly or implicitly. [ 75 ] This Court understand the predicament of the accused who probably felt he had to choose between his right to make full answer and defence with the counsel of his choice and his right to be tried within reasonable time , both important and fundamental rights in our criminal justice system.

Having said that, this Court finds it amounts to clear and non-equivocal waiver, when the accused decides to wait for his counsel’s return from sick leave. (From January 12 th until March 20 th , 2017: 67 days to subtract . 51.6 months minus 67 days = 49 months ) [ 76 ] Now, turning to delays caused by defence actions, the first postponement of the preliminary inquiry should be attributed to defence even if it was not solely due to defence’s conduct and was not illegitimate in itself.

Using my discretionary powers, I find this amounts to other defence action or conduct causing delays warranting a deduction ( Jordan , par. 64 ; Cody , par. 32 and 33 ). [ 77 ] Also, these same 94 days (between August 15 th and November 17 th , 2014) could also be considered implicit waiver by the accused because it was more than a simple recognition of the inevitable ( Morin , p. 790). (49 months minus 94 days = 46 months ) [ 78 ] Indeed, on August 15 th , 2014, the defence asked for the postponement the morning the preliminary hearing was scheduled while all witnesses were present.

The dispute evidence (DVD) was disclosed since July 29 th , 2013, almost 13 and a half months before. How come M e Schneider did not realize the problem before? Why did he not notify the prosecution or the court’s coordinating office sooner? Had he done so, these delays involving the postponement of the preliminary inquiry would have been most probably avoided.

Judicial resources are limited and valuable, they must be used wisely. [ 79 ] True, the initial problem was caused by the investigating officers (the Kahnawake Peacekeepers) who apparently prepared and submitted incomplete video material to the prosecution in July 2013. However, everything indicates it was an inadvertent and unfortunate mistake on their part. No bad faith involved. They were not aware of the problem, the master video was apparently working properly.

In addition, only the last 5 minutes of the video statement were missing. [ 80 ] Unfortunately, the former prosecutor did not realize the problem before either. Had he done so, surely he would have notified the defence accordingly. This being said, defence counsel has also a duty to act diligently and collaborate with the administration of justice

especially on matters of disclosure of evidence [13] . [ 81 ] This Court is not debating or in any way criticizing defence strategy to ask for postponement once face with the problem on D day . It is understandable M e Schneider preferred to know precisely the extent of Mrs. B.’s allegations against his client before proceeding and therefore be better prepared before his cross-examination of the witness. But then, why not proceed and cross-examine the other complainant (Mrs. A.) and the other 7 witnesses present that day? Bottom-line, it was the defence decision to ask for postponement.

The accused did not express any objections at the time. Prior to Jordan’s release, judges were more reluctant to deny defence request for postponement unless it was manifestly abusive, frivolous or dilatory (and it was not). Accordingly, these 94 days should be deducted. [ 82 ] Surprisingly, the same situation occurred on November 17 th , 2014 . This Court accepts the prosecution’s submissions: it could either be considered defence delays or discrete events , both have to be subtracted.

Had the DVD technical problem been dealt with earlier, the preliminary hearing would have probably proceeded in the morning since everyone was present from the start (considering also the nature of the charges). [ 83 ] Justice Marleau offered to suspend the hearing and to proceed once defence was able to view the missing parts of Mrs. B.’s video statement. For some reasons, it was not done. In any event, the situation evolved and the hearing could not resume because the other complainant felt ill or sick in the afternoon after a long wait to testify. She was 7 months pregnant at the time.

The transcripts shows that former defence counsel did not question or dispute the fact that Mrs. A. did not really feel well enough to testify. Surely, defence cannot successfully challenge this afterwards without complaining in due time. [ 84 ] This situation falls clearly in the category of discrete event . It is something that was reasonably unforeseeable and reasonably unavoidable ( Jordan , par. 69 ; Cody , par. 58 ). Prosecution could not have remedied the situation.

The complainant’s inability to render her testimony that day because of health issues lies outside the prosecution’s control. [ 85 ] After deducting waiver and defence related delays and discrete events surrounding Mrs. A.’s illness or health issues preventing her from giving her testimony last November, roughly 29 months net delay remains . [ 86 ] It falls slightly under the 30 months presumptive ceiling provided by the Jordan framework. Accordingly, the defence bears the onus to show that the delays are unreasonable.

To do so, the defence must establish that (1) it took meaningful steps that demonstrate a sustained effort to expedite the proceedings; and (2) the case took markedly longer than it reasonably should have ( Jordan , par. 48 ; Cody , par. 23 ). [ 87 ] True, the accused attended personally many court dates but his defence team were far from proactive as far as delays are concerned. They never expresses real concerns for delays, nor never requested sooner dates to proceed.

His former lawyer’s lack of diligence in his preparation in light of the coming preliminary inquiry (only viewing the DVD disclosed one or two days before the hearing). The re-election was registered outside the legal delay ( section 561(1)

b) of the Criminal Code provides it can be done before the fifteenth day following the completion of the preliminary inquiry, as of right [14] […]). There were multiple changes of defence counsel during proceedings (even though they work together in the same law firm). [ 88 ] The application was filed two months before the first trial date scheduled in January this year. Shortly after filing the motion, defence counsel became unavailable to debate it and commence trial if required. This contributed to additional delays. [ 89 ] Also, the accused himself did not demonstrate readiness to stand trial.

Even though he now claims having suffered prejudice in reasons of these long delays, while he was attending different court dates, he never manifested any discomfort or disapproval whatsoever with any of his counsel’s submissions to the presiding judge in this case.

His behavior appears inconsistent with the desire for a timely trial ( Morin , p. 802). [ 90 ] Even assuming the net or remaining delay would slightly exceed the 30 months presumptive ceiling, this Court would nonetheless conclude the transitional exceptional circumstance applies and justifies the delay ( Jordan , par. 95 and 96 ; Cody , par. 25 ). [ 91 ] Both parties rightfully agree this does not qualify as a particularly complex case . Charges arose from one single event. A dozen of witnesses could be called upon to testify at trial estimated to last two days at the most.

In fact, there seems to be nothing complex about it at all. [ 92 ] Here, the prosecution relies on the third category: cases already in the system when Jordan was decided ( Jordan , par. 94 to 98 ; Cody , par. 46 and 67 to 74 ). [ 93 ] This requires a qualitative analysis or exercise.

The highest court recognizes that the parties’ behavior cannot be judged strictly against a standard of which they had no notice and that change takes time ( Jordan , par. 96 and 97 ; Cody , par. 68 ). [ 94 ] This Court finds that the time the case has taken thus far (including the anticipated end of trial next October) is justified bases on the parties’ reasonable reliance on the law, as it previously existed ( Jordan , par. 96 ; Cody , par. 68 and 69 ). [ 95 ] Under the former Morin framework, the seriousness of the charges and prejudice often played a decisive role in the analysis.

Therefore, it should be analysed. The Prejudice [ 96 ] The accused testified in the course of his motion to ask for a stay of the proceedings. [ 97 ] He is 24 years old. He’s a young aboriginal man living in Kahnawake. He does not have any prior convictions. [ 98 ] Understandably, he did not testify on the underlying facts. I want to stress I did not read the witnesses testimony at the preliminary inquiry to avoid any bias appearances or apprehension even if the transcripts were tendered in evidence.

[ 99 ] He was arrested by the peacekeepers on July 9 th , 2013 and later released on bail three days later (on July 12 th , 2013). [ 100 ] The accused bail conditions were rapidly varied favorably upon his request with the prosecution’s consent (for example, his curfew was modified 3 months after his release from 10 p.m. to 6 a.m.; it was modified again on November 17 th , 2014 from 11 p.m. to 6 a.m.; condition n o 11 provides he has to notify the peacekeepers before leaving the province of Quebec). [ 101 ] Furthermore, he concedes the weapons interdiction did not pose a serious problem for him.

He did not use to own or carry them before. [ 102 ] The difficulties encountered finding and keeping employment, if any, cannot be attributed to the ongoing delays facing the criminal charges in the system. This Court does not necessarily disbelieve or reject the accused testimony but it remains a general affirmation without more. [ 103 ] Bottom-line, this Court is simply not satisfied or convinced the accused suffered real prejudice caused mostly by the delays in the judicial proceedings. Instead, the prejudice, if any, appears to flow from the nature of the charges themselves.

THEREFORE AND FOR ALL THESE REASONS, THE COURT: [ 104 ] DISMISSES the Motion to stay the proceedings. __________________________________ ANN-MARY BEAUCHEMIN, Q.C.J. M e Nancy Potvin Criminal and penal prosecuting attorney M e Marie-Pier Boisvert For the accused Court hearings: May 16 th and June 28 th , 2017 [1] This ruling was initially rendered orally on June 28, 2017. This decision was later prepared and made available to parties on September 5 th , 2017.