2019 QCCQ 3884, 2019 QCCQ 3884

Translated from the original French R. c. Gauthier 2019 QCCQ 3884 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF SAINT-HYACINTHE LOCALITY OF SAINT-HYACINTHE “Criminal and Penal Division” Nos.: 750-01-048762-163; 750-01-049314-162 DATE: MAY 30, 2019 ______________________________________________________________________ PRESIDING: THE HONOURABLE BENOÎT GARIÉPY, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutrix v.

MICHEL GAUTHIER Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Michel Gauthier, hereinafter the accused, is charged with dangerous operation of a motor vehicle, assault with a weapon, causing a police officer to begin an investigation by reporting that a theft had taken place when this was not the case, and possession of cannabis. [ 2 ] The accused was self-represented at trial. [ 3 ] On February 19, 2019, the day before the date set for commencement of the trial, the Crown prosecutor telephoned the office of the coordinating judge and asked that the trial be postponed and the witness summonses be cancelled, on account of the absence of an [ translation ] “essential” witness. [ 4 ] After a quick look at the court ledger, an e-mail was sent from the coordinating judge’s assistant to the Crown prosecutor.

The requested cancellation of summonses was refused because the accused had no counsel and the Crown had already been granted one postponement.

The decision to postpone the trial was, however, referred to the Court, in order to find out more about the situation and obtain the accused’s point of view. [ 5 ] At the beginning of the trial, after consulting the summonses and the various minutes, the Court denied the Crown’s request for a postponement, given the date that the charges were filed and that it had already been granted not one, but two, postponements of the trial. [ 6 ] Since the accused was representing himself, and to protect his fundamental rights, the Court raised ex officio the preliminary issue of delays, which struck it as problematic at first glance.

It therefore asked the Crown’s opinion in this regard. [ 7 ] The recordings from the different dates on which the accused’s cases appeared on the roll were replayed in the courtroom, at the Crown’s request, so that it could answer this question properly. [ 8 ] The trial then began, but unfortunately the evidence could not be completed on the scheduled date, considering, inter alia , that the trial began late, because there were several other cases to deal with. It was completed only a few weeks later. [ 9 ] Given this rather unusual situation, the Court must answer the following three questions: (

a) Can the Court raise proprio motu an apparent violation of an accused’s right to be tried within a reasonable time?

(

b) If so, was the accused’s right violated in the present case, thereby justifying a stay of proceedings in his regard? (

c) If not, has the Crown discharged its burden of proving beyond a reasonable doubt the offences with which the accused is charged?

PROCEDURAL CONTEXT [ 10 ] The present context results from the Court’s analysis of the record and a replaying of the recordings from the different dates on which the accused’s cases appeared on the roll. [ 11 ] The accused faces four counts, in two different cases, for a series of events that occurred on April 17 and 18, 2016. [ 12 ] In the first case (750-01-048762-163), a charge of possession of cannabis was filed on May 25, 2016. [ 13 ] He appeared on July 18, 2016, and pleaded not guilty to this charge. [ 14 ] The charges for the three other offences listed above were filed on August 10, 2016 (750-01-049314-162). [ 15 ] The accused appeared this time on October 31, 2016, to answer these charges and pleaded not guilty to each one.

On that date, the other case also appeared on the roll pro forma . As of this date, the two cases have always been joined. [ 16 ] The cases returned to Court on January 23, 2017. On that date the accused, then represented by counsel, requested that the trial date be set. The length of the trial was assessed jointly by the Crown and the defence to be four hours. [ 17 ] A correspondent, then representing the accused’s counsel, was informed that the Court would not be available until the fall. He was offered two dates: November 8, 2017, when only three hours were available, and November 21.

The trial was therefore scheduled for this last date. [ 18 ] On November 16, a few days before the date in question, the Crown prosecutor requested a postponement of the trial and cancellation of the summonses because a police officer, an essential witness, was on leave until January due to a brain tumour. [ 19 ] This request was accepted by the Court. Speaking through his counsel, the accused said that he was ready to proceed the following week.

The case was postponed to March 5, 2018, however, at the Crown’s request, to check on the police officer’s state of health. [ 20 ] On that date, the cases were postponed pro forma , by consent of the parties, to March 12, 2018, without any additional details about the police officer’s state of health. [ 21 ] On March 12, a new trial date was set for July 25, 2018, the first date offered by the Court. The Crown announced that it had five witnesses and the trial was expected to last five hours.

Once again, there was no word on the police officer’s state of health or whether she would be able to testify on that date. [ 22 ] On July 25, the date of the trial, the lawyer who had been representing the accused up to then, was not present in Court. Considering, however, the explanations by the lawyer’s representative and by the accused that he was being encouraged to plead guilty to certain offences, which he did not want to do, the lawyer was authorized to withdraw from the case. [ 23 ] The Court then asked the Crown if its witnesses were present.

The Crown replied that it was missing only a police officer, but was ready to proceed. The Court therefore decided to proceed and force the accused to represent himself. The accused accepted the decision. [ 24 ] After the break, however, just as the trial was about to begin, there was a dramatic turn of events. The Crown stated that it was actually missing two witnesses, whom it described as [ translation ] “essential”. [ 25 ] One of these witnesses was the alleged victim, who was mistaken about the date. He was in Lévis, but could come.

He would arrive, however, only at the end of the day. [ 26 ] The other witness was the same police officer who was absent on the first trial date. The Court learned that she had asked the Crown for permission not to attend the trial, but that this request had been denied. The reason for her absence was not known, except that she was still on leave from work and could not be reached at that time. [ 27 ] Faced with this situation, the Court allowed the trial to be postponed, with the cases postponed pro forma to August 27, 2018, to ascertain whether the accused wanted a new lawyer.

The Court stated, however, that the trial would be set on that date, with or without counsel. [ 28 ] On that date, the cases were again postponed to September 14, 2018, to give the accused one last chance to find a lawyer. [ 29 ] Ultimately, on that date, the cases were again postponed to October 15, 2018, this time with an explicit waiver by the accused concerning the delays.

The accused was represented by a new lawyer who announced that a possible Charter application could be presented. [ 30 ] On October 15, the trial was set for February 20, 2019, after counsel for the accused refused the date of January 31. [ 31 ] On January 4, 2019, however, counsel for the accused was authorized to withdraw. The Court, however, maintained the trial date

and told the accused that the trial would be held on the scheduled date, whether or not he had legal representation. The accused accepted this decision calmly. [ 32 ] On February 20, the trial finally began, following the Court’s refusal to postpone it for the reasons mentioned above. [ 33 ] On that date, Officer Annie Paquin, who could not attend on the previous two trial dates, was heard. [ 34 ] The Crown prosecutor opened a voir dire , so that the police officer could testify on the issue of the delays raised by the Court. From her testimony, the following relevant elements emerged: (

a) She has a brain tumour for which she is still being treated; (

b) She could not specify from what date until what date she was on leave from work for this reason; (

c) She was able to state, however, that the tumour was diagnosed in 2016 and she had been on leave from work since the diagnosis until very recently; (

d) She said that she could not come to testify in Court because at certain times she was hospitalized. She had to check the exact dates of these periods of hospitalization, because she had also had other medical problems; (

e) She would be able, however, to provide the Court with documents to establish, in particular, the exact dates she was on leave from work, as well as the dates she was hospitalized and therefore unable to testify in Court; [ 35 ] The trial could not be completed and had to be postponed to June 20, 2019. [ 36 ] After a different trial was cancelled, however, the Crown contacted the accused and the undersigned judge and the parties agreed to continue the trial on April 16, instead of the scheduled date of June 20. [ 37 ] The trial did in fact continue on April 16, when the presentation of the evidence was completed. [ 38 ] It should be noted, however, that the documents Officer Paquin undertook to provide to the Court, to detail, inter alia , the dates on which she was unavailable to testify, were never produced.

THE CROWN’S SUBMISSIONS [ 39 ] First, the Crown prosecutor claims that the Court cannot raise this issue ex officio because it is not faced with a clear violation. [ 40 ] It also faulted the Court, on this specific point, for having taken note of the evidence even though it had not been presented. [ 41 ] Alternatively, the Crown affirmed, after replaying the recordings from the different dates on which the cases of the accused appeared on the roll, that a good part of the delays could be explained by the illness of a witness whom it described as essential.

The Court should therefore deduct this portion of the delay as exceptional circumstances. [ 42 ] The Crown prosecutor also claims that the accused implicitly waived a large portion of the delays. [ 43 ] Once these various delays have been deducted, the Crown prosecutor submits that the net delay is only four months and three weeks, well below the established ceiling. [ 44 ] Finally and alternatively, the Crown prosecutor states that it has proved beyond a reasonable doubt all of the essential elements of each charge against the accused. [ 45 ] The Court will respond to these arguments as it analyzes the various issues.

THE LAW [ 46 ]

Section 11(

b) of the Charter provides that any accused person has the right to be tried within a reasonable time. [ 47 ] Section 24(1) provides that anyone whose Charter rights or freedoms have been infringed may apply to a court to obtain an appropriate and just remedy. [ 48 ] It should be recalled that the Crown always has the constitutional obligation to bring an accused to trial. [1] [ 49 ] In 2016, the Supreme Court in Jordan [2] developed a new analytical framework establishing a ceiling beyond which a delay in being tried is presumed unreasonable. These cases are being prosecuted by way of

summary conviction and the ceiling is 18 months. [ 50 ] In this judgment, the highest court in the land stated that an accused’s right to be tried within a reasonable time is central to the administration of Canada’s system of criminal justice. [3] [ 51 ] It also stated that timely trials are important to maintaining overall public confidence in the administration of justice . [4] [ 52 ] The following year, the Supreme Court in Cody [5] confirmed and clarified this new analytical framework.

[ 53 ] It flows from these judgments that the total delay is calculated from the date the charges are filed until the actual or anticipated end date of trial. [6] [ 54 ] Delays attributable to the defence must be deducted from the total delay. [7] These delays have only two components: (

i) Delays waived by the defence; the waiver can be explicit or implicit, so long as the waiver is clear and unequivocal. [8] (ii) Delays caused solely or directly by the defence’s conduct or that result from defence actions not taken legitimately. [9] [ 55 ] The result thus obtained is called the net delay. [10] [ 56 ] If the net delay exceeds the ceiling, it is presumptively unreasonable [11] and it is up to the Crown to rebut this presumption and justify the delay by establishing the presence of exceptional circumstances. [12] [ 57 ] Exceptional circumstances are circumstances that lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable and Crown counsel cannot reasonably remedy them. [13] [ 58 ] In general, exceptional circumstances fall under two categories: discrete events and particularly complex cases. [14] [ 59 ] If the exceptional circumstance takes the form of a discrete event, the delay that is reasonably attributable to this event is deducted from the total delay.

If it takes the form of a particularly complex case, the delay is reasonable and justified, and no further analysis is required. [15] [ 60 ] If the Court rules that the delays are still unreasonable, it must then determine whether the transitional exceptional circumstances apply. These may apply to charges filed prior to Jordan , namely before July 2, 2016. [ 61 ] The application of this transitional circumstance is allowed when the Crown satisfies the court that the time the case has taken is justified: (

a) based on the parties’ reasonable reliance on the law as it previously existed; [16] (

b) because the case is of moderate complexity in a jurisdiction with significant institutional delay problems. [17] ANALYSIS 1.

Can the Court raise ex officio, in a context in which the accused is self-represented, a potential violation of his right to be tried within a reasonable time? [ 62 ] This question must be answered in the affirmative. [ 63 ] It is never easy for the Court, when an accused is representing himself as in the present case, to properly define its role. [18] The trial judge is certainly not the defendant’s counsel and must not act as such. [ 64 ] In spite of its important duty of impartiality, it is now well established that the Court must still guarantee that the fundamental rights of an accused who is self-represented will be respected so that the accused can have a fair trial and to avoid a possible miscarriage of justice. [19] [ 65 ] The Court has an obligation to assist a self-represented accused, which may include, in particular, the obligation to raise Charter issues when the accused himself does not do so. [20] The degree of assistance required will depend, among other things, on the circumstances of the case and those of the particular accused. [21] [ 66 ] The Court can act in this manner, in cases of Charter violation, because the Charter is an integral part of this country’s constitution and furthermore it is the most fundamental law concerning the rights of individuals and, in particular, of the accused in criminal matters. [22] [ 67 ] The trial judge is, moreover, the guardian of the fairness of the proceedings and respect for an accused’s right to make full answer and defence. [23] [ 68 ] Some judgments, however, require that the violation be clear before the Court can raise, ex officio , a Charter violation. [24] Certain judges speak of “strong evidence of a prima facie case of a breach of a Charter right”, [25] while others refer to “admissible uncontradicted evidence”. [26] [ 69 ] The Court considers that it has a more than clear case before it.

The trial commenced more than 30 months after charges were filed, for

summary conviction offences, when the Crown had already obtained two postponements of the trials. It was blatantly obvious, after a quick review of the court record, particularly the minutes and the informations, that there could be a problem with the delays. [ 70 ] In addition, it is important to note that it was the Crown itself that drew the Court’s attention to the issue of delays, by presenting a third request for a postponement in this case, this time the day before the scheduled trial date. [ 71 ] Finally, given the publication of the Supreme Court’s decisions in Jordan and Cody , and Rice of this Court of Appeal, combined

with the increase in self-represented accused, the Court doubts that the requirement for a [ translation ] “clear” violation still exists. [ 72 ] Indeed, these courts have clearly insisted on the importance of a culture change regarding delays before an accused stands trial for all participants in the justice system, but especially judges. [27] [ 73 ] This culture change requires that all justice system participants must now accept that many practices which were formerly commonplace or merely tolerated are no longer compatible with the right guaranteed by s. 11(

b) of the Charter. [28] [ 74 ] In addition to all the other aspects dealt with by these judgments regarding corrective measures that it must now apply, the Court must be much more vigilant with regard to potentially unreasonable delays, especially when an accused is self-represented and therefore has little knowledge of legal issues. [ 75 ] Judges have an important role to play regarding delays and they must be innovative while remaining sensitive to the fairness of the proceedings. [29] As the constitutional right guaranteed by s. 11(

b) of the Charter has a collective dimension and does not belong only to the accused, [30] judges must be doubly alert to a possible violation and ensure that this constitutional right is respected. [31] [ 76 ] In a context where the accused is self-represented, it appears to the Court that as soon as the established ceiling has been exceeded and there is therefore a presumption that the accused’s right to be tried within a reasonable time might have been violated, the Court should raise the issue ex officio .

Furthermore, the need for judges to have more latitude in this regard perfectly fits the new case management powers arising from Jordan, Cody and Rice. [ 77 ] When the Court decides to raise a Charter issue ex officio , the parties must always be given an opportunity to present arguments in this regard. [32] [ 78 ] In the present case, the Court considers that it granted the Crown all the necessary latitude to answer the issue concerning the problematic delays that it had raised. [ 79 ] In view of all the foregoing, the Court concludes that it could raise ex officio a potential violation of the accused’s right to be tried within a reasonable time. 2.

Was the accused’s right to be tried within a reasonable time violated in the present case, justifying a stay of proceedings in this regard?

First step: Calculating the net delay [ 80 ] As previously stated, the total delay is calculated from the date the charges are filed until the date on which the trial ends . [ 81 ] In the present case, this delay is therefore 1,056 days, namely 34 months and 3 weeks, for the possession of cannabis file (750- 01-048762-163), and 979 days, namely 32 months and 1 week, for the main file (750-01-049314-162). [ 82 ] In this case, even though the applicant had a number of difficulties with the different lawyers who represented him, these difficulties were not significant.

On the contrary, even when forced by the Court to proceed without counsel on the second scheduled trial date, he agreed uncomplainingly. [ 83 ] The only delays to be deducted from the total delay are the delays totalling 49 days (7 weeks).

A delay of 31 days (from September 14 to October 15, 2018) where there was a clear and unequivocal explicit waiver, and a delay of 18 days due solely to the defence (from August 27 to September 14, 2018). [ 84 ] The delay that the Crown wanted the Court to also deduct was the complete delay resulting from the first setting down for trial, namely from January 21 to November 16, 2017. The reason for this was that the defence had implicitly waived this delay by simply accepting the proposed date, without complaining that it was far away. [ 85 ] Counsel submitted Thibault [33] of the Superior Court in 2018.

In this decision, the judge, referring to Béliveau [34] of the Court of Appeal, stated that consent to setting a date is a waiver of the delay, in the absence of any evidence to the contrary that this consent represents acquiescence in the inevitable. [ 86 ] The Court of Appeal referred to the Supreme Court decisions in Rogalsky [35] and Brassard , [36] dating from 1995 and 1993, respectively, setting forth this principle. [ 87 ] The Court considers that acceptance by a correspondent of counsel for the accused, however, does not constitute a waiver by the accused for the following reasons: (

a) It is not a clear and unequivocal explicit waiver, as now required by Jordan [37] and Cody ; [38] (

b) The Supreme Court, again in Jordan , recognized that its past decisions lacked clarity concerning what constituted a waiver by the accused. It now clearly states that, when the accused consents to a date for trial offered by the Court, that consent, without more as in the present case, does not amount to waiver. The onus is on the Crown to demonstrate that this period is waived.

In other words, in such a case, it must demonstrate that the accused’s conduct reveals something more than “mere acquiescence in the inevitable” and that it meets the high bar of being clear, unequivocal, and informed acceptance that the period of time will not count against the state. [39] Even though the minority judges issued this position, this portion of their dissidence is not incompatible with the majority on this specific point. In this judgment, all the judges of the Supreme Court agreed on what constitutes a waiver by an accused; (

c) The alleged waiver was not noted in the minutes. Even though the waiver does not have to be verbalized to be clear, ambiguity must nonetheless be avoided. If the context is ambiguous, no delay may be deducted. [40] On one occasion, namely on September 14, 2018, the minutes of the hearing state that the defence waived the delays. This statement does not appear in the minutes of January 23, 2017. In this context, the Court is convinced that on that date the defence did not waive the delay caused.

The situation obviously cannot be characterized as clear and unequivocal. [41] [ 88 ] That is why the Court believes that it is justified in distinguishing Béliveau of the Court of Appeal and Thibault of the Superior Court. The Court prefers to follow the new trend established by Jordan and Cody of the Supreme Court, as well as by Guimont and Rice of the Court of Appeal.

The Court feels bound by these four decisions. [ 89 ] In view of all the foregoing, the Court concludes that the net delay is therefore 1,007 days, namely 33 months and 1 week, in the cannabis file and 930 days in the other file, namely 30 months and 3 weeks. Second step: Determining whether there are exceptional circumstances [ 90 ] The 18-month ceiling is the one applicable to this present case.

Since the net delay largely exceeds this ceiling, it is presumed unreasonable and the onus is on the Crown to rebut this presumption by invoking exceptional circumstances. [ 91 ] Regarding the first category of these exceptional circumstances, namely discrete events, the Crown raises Officer Paquin’s illness to explain a large part of the problems with delays in the accused’s file because she was on leave from work for a period of close to three years. [ 92 ] The Court totally disagrees with this point of view for several reasons. [ 93 ] First, the Court does not consider that Officer Paquin’s medical situation meets the criteria of a so-called exceptional circumstance. [ 94 ] Indeed, although the Court does not doubt for an instant the seriousness of her illness, or the fact that she had to be absent from work for a substantial period, her condition at the time of the postponements of the accused’s trial was not “reasonably unforeseen or reasonably unavoidable” . [42] [ 95 ] Although the Court does not know the exact date of her leave from work, because the documents attesting to it were never adduced as evidence, the Court accepts that it was sometime in 2016, based on her testimony, and clearly after April 18 because she was the one who met the accused when he came to the police station. [ 96 ] Therefore, her condition was known or should have been known for some time when the trial was first scheduled in January 2017.

It was only 10 months later and five days before the trial date, however, that the Crown asked the Court for a postponement and to cancel the witness summonses. At that time, there was no doubt that the officer’s state of health should have been known to the Crown. [ 97 ] Why was the request for a postponement made so late? Was it because the subpoena was sent late to the officer? Was it because of a delay in presenting the request to postpone the trial or another similar reason? The Court has absolutely no idea because no explanation was provided.

Someone somewhere was certainly not diligent, however, and it was definitely not the accused. [ 98 ] At the time of the first postponement of the trial, the police officer’s medical condition did not meet the criterion of an unforeseeable condition.

Even less so at the time of the second postponement, because her condition had been known for an even longer time. [ 99 ] Furthermore, even though she was on leave from work according to the information provided by the Crown on November 16, 2017, the Court has no information on whether she was incapable of appearing in Court to testify, as stated in her testimony of February 20, 2019. [ 100 ] Officer Paquin told the Court that it was only because of certain periods of hospitalization that she was incapable of appearing. [ 101 ] Once again, since the said documents that could establish the dates of these periods were not filed in evidence, the Court has but little information in this regard. [ 102 ] The Crown, however, has the duty and the responsibility to inform the Court of the real reasons for requesting a postponement and must not withhold information, which may also require more complete explanations so that the judge can assess the relevance, utility and impact of the request. [43] This also allows the Court to understand the dynamics and progression of the case.

If the request is granted,

it may eventually correctly attribute responsibility for the resulting delay. [44] [ 103 ] Even if the Court found that the first request for a postponement was due to exceptional circumstances, because they were reasonably unforeseen or reasonably unavoidable, the delays to be deducted would nevertheless result in the delay exceeding the ceiling. [ 104 ] It is clear, however, that it is completely otherwise for the second request for a postponement.

There is nothing unforeseen about it and it could have been avoided had a minimum of diligence been applied to the accused’s file. [ 105 ] When the Court was told, at the time of the first postponement, that the Crown wanted to postpone the case pro forma precisely to confirm Officer Paquin’s state of health, no follow-up seems to have been done because no information was transmitted to the Court. [ 106 ] Even more troubling, no precautions were taken before setting the second trial date to ensure that the police officer would be available.

Since the Court learned that the officer had just returned to work on February 20, 2019, it was illusory to think that she could have been in court on July 25, 2018, the date of the second trial postponement.

The Crown had a duty of care when setting the new trial date. [45] [ 107 ] Indeed, the main reason for the second postponement of the accused’s trial has much more to do with the totally unjustified absence of the alleged victim, who had forgotten the date, as the victim is the most important witness in the Crown’s case. [ 108 ] In addition, the Court is also not convinced that Officer Paquin was an essential witness justifying the trial postponements. [ 109 ] Of course, at the time the postponements were requested by the Crown, the Court had to rely on the Crown’s assessment on whether her testimony was essential. [ 110 ] Now that the trial is over, the Court has had the benefit of hearing her testimony as well as that of the accused. [ 111 ] Officer Paquin’s testimony was essential for only one of the counts, namely causing an officer to begin a false investigation, and was of no use for the other three counts. [ 112 ] The accused, who as we know is self-represented, did not ask her any questions on cross-examination.

He also admitted the essential elements of her version, namely that he did actually meet her at the station when he filed a complaint about a theft and that she took steps following his complaint. [ 113 ] The Crown prosecutor, seeing the seriousness of her condition leading to a very prolonged absence, failed to take any reasonable measure to avoid and address the problem before the ceiling was breached, as he was expected to do. [46] He did nothing to mitigate the delay resulting from this possible discrete exceptional circumstance. [47] There were, however, several avenues open to him to attempt to remedy the situation. [ 114 ] At the very least, he could have tried to obtain an admission from the defence and thus proceed by filing the police officer’s report or by admission as to the content of her testimony. [ 115 ] If this avenue proved fruitless, he could have chosen, given her very prolonged absence, to proceed by filing the police report in application of the principles set out in Khan and Khelawon of the Supreme Court. [ 116 ] Finally, he also could have decided to proceed solely on the three other counts instead jeopardizing all the charges through the accumulation of delays.

The Crown must have a thoughtful strategy for countering such a situation, which may sometimes require making compromises. [48] [ 117 ] Crown counsel are strongly encouraged to use their discretionary power to attempt to break an impasse when this kind of particular case occurs. [49] [ 118 ] They must show they have a concrete plan to minimize the delay occasioned by this type of situation, [50] which was not done in these files.

On the contrary, here the Crown tried to obtain a third request for postponement. [ 119 ] For the second category of exceptional circumstances, the Court is not faced with a situation or case that is particularly complex.

The Supreme Court, still with regard to Jordan , stated that particularly complex cases are cases that, because of the nature of the evidence or the nature of the issues, require an inordinate amount of trial or preparation time, [51] which is clearly not the case for the accused’s files. [ 120 ] They are rather simple files where the trial was scheduled for only one day, and involved uncomplicated legal issues and evidence and not much preparation time. [52] [ 121 ] It is inconceivable that in such a situation, the accused had to wait more than 30 months before being able to answer the charges against him.

It must be concluded that the Crown did not take seriously its obligation to bring the accused’s rather straightforward case to trial in a reasonable time. [53] [ 122 ] For the previously stated reasons, the Court finds that the Crown has failed to discharge its burden of proving that the delays were reasonable because they resulted from exceptional circumstances.

Third step: Determining whether the transitional exceptional circumstances apply [ 123 ] Charges in the main file (705-01-049314-162), dealing in particular with charges of dangerous operation of a motor vehicle and assault with a weapon, were filed on August 10, 2016.

Since Jordan had already been rendered, there is no need to apply transitional circumstances for these charges. [ 124 ] The other file, however, concerning the possession of narcotics, was technically pending at the time Jordan was rendered, because the charges were filed on May 25, 2016, and the transitional exceptional circumstance likely to apply. [ 125 ] As the appearance in this file took place on July 18, 2016, however, scarcely a few weeks later and after Jordan was rendered, the Crown knew the new rules to follow from the outset. [ 126 ] When considering the transitional exceptional circumstance, the Court should be mindful of what portion of the proceedings took place before and after Jordan was released . [54] [ 127 ] In view of these facts and the Crown’s obvious laxness and because the ceiling has been greatly exceeded, the Court concludes that in this file as well the Crown cannot rely on the transitional exceptional circumstance. [ 128 ] Should the Court be wrong on this point, it would conclude that, in any event, the Crown has not shown that the delays were justified because it reasonably relied on the law as it previously existed. [ 129 ] The Court arrives at this conclusion in view of all the facts in the file and by taking into account the five factors established by the Supreme Court in Williamson , [55] rendered the same day as Jordan. [ 130 ] Finally, the Court is not facing a case of moderate complexity in a jurisdiction with significant institutional delay problems, as no representation was made in this regard by the Crown. [ 131 ] The Court considers, as previously stated, that this file is by no means complex.

Even had it reached another conclusion in this regard, the Court is bound by Lefebvre , [56] a recent decision of the Superior Court dealing specifically with institutional delays in our district. [ 132 ] In view of all the foregoing, the Court concludes that the accused’s right to be tried within a reasonable time was violated in these files. [ 133 ] A stay of proceedings remains the only appropriate remedy in such circumstances. [57] 3.

Has the Crown discharged its burden of proving beyond a reasonable doubt the offences with which the accused is charged? [ 134 ] In view of the response given to the previous question and the conclusion about to be made in these files, the Court need not answer this question. FOR THESE REASONS, THE COURT: [ 135 ] GRANTS a stay of proceedings in Mr. Michel Gauthier’s files 750-01-048762-163 and 750-01-049314-162. __________________________________ BENOÎT GARIÉPY, J.C.Q. Mtre Cimon Sénécal Crown prosecutor Mr. Michel Gauthier Self-represented Dates of hearing: February 20, 2019 March 12, 2019