Autorité des marchés financiers c. Cortellazzi 2023 QCCQ 79 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT DE M MONTREAL “Criminal and Penal Division” No.: 500-61-406191-156 Date: January 9, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE JOSÉE BÉLANGER, J.C.Q. ______________________________________________________________________ AUTORITÉ DES MARCHÉS FINANCIERS Prosecutor / Respondent v.

Michael Raso Cortellazzi and Antonio Savaris Defendants / Petitioners _____________________________________________________________________ JUDGMENT Decision on applications for stays of proceedings due to unreasonable post-charge delays ( sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) [ 1 ] Petitioners Cortellazzi and Savaris (the “petitioners”) are charged with various counts filed by the Autorité des marchés financiers (AMF) for offences under the Securities Act ( SA ). [1] [ 2 ] Essentially, the AMF alleges that the petitioners influenced or attempted to influence the market price or value of securities, that is, of the shares of various companies, by means of unfair, improper or fraudulent practices, in violation of

section 195.2 of the SA . [ 3 ] In the case of Cortellazzi, the charges relate to shares of HE-5 Resources Corporation (between February 26, 2007, and May 18, 2010) (Count 8), UMining Resources Inc. (between February 26, 2007, and July 20, 2010) (Count 9) and Neuro Biotech Corp. (between August 4 and November 5, 2010) (Count 10). [ 4 ] In the case of Savaris, the charges relate to shares of HE-5 Resources Corporation (between March 15 and August 15, 2010) (Count 6), and Neuro Biotech Corp. (between August 4 and December 29, 2010) (Count 7). Issues [ 5 ] Was the petitioners’ right to be tried within a reasonable time under

section 11(

b) of the Charter violated? If so, is a stay of proceedings the appropriate remedy? [ 6 ] The petitioners filed applications for a stay of proceeding due to unreasonable post- charge delays based on

section 11(

b) of the Charter . These are the third applications in this trial. [ 7 ] The petitioners’ trial proceeded before the undersigned from September 5, 2017, to November 12, 2020. The date set for the parties’ arguments was November 12, 2020.

[ 8 ] At issue in this trial were the actions committed by the petitioners – actions that, according to the respondent, were committed as part of a “pump and dump” scheme – as well as their intent. [ 9 ] According to the prosecution, the petitioners, from Andrea Cortellazzi’s organization, committed actions that constituted one or more “unfair, improper or fraudulent practices” in the context of an illegal “pump and dump” scheme to influence or attempt to influence the market price or the value of the securities of the companies named in the statements of offence. [ 10 ] For the purposes of this judgment, “pump and dump” will be defined as follows: [2] [ translation ] As its name indicates, a pump and dump is a two-step operation.

First, the security is artificially boosted (the “pump”): the perpetrator of the scheme, who generally owns (or has an interest in) a significant amount of a company’s securities tries to increase its value, typically by spreading positive information about the company that is false and/or by orchestrating abnormally high trading of the securities, in order to simulate a bull market. Next, the sale of the securities (or “dump”): once the desired share price is reached, the perpetrator of the scheme performs a sell-off of the securities.

After that sale, the price of the security drops dramatically and the unfortunate investors suffer a significant loss. The Consortium Investigation [ 11 ] The investigation known as [ translation ] “Project Consortium” began on July 12, 2010. It was a protracted investigation. [ 12 ] The respondent called two investigators, David Gallant and Frédéric Laforge, to testify, and they explained the steps of their investigation that led to charges being brought. [ 13 ] The investigation was launched after the publication of newspaper articles in June 2010.

The information contained in the articles was verified, witnesses were met, and research was carried out on the companies named in the articles and on the financial information filed by the companies, etc. [ 14 ] Given the magnitude of the work to be done, four investigators were assigned to this task, and three others would join them during the investigation,. [ 15 ] The investigation revealed that several individuals were involved in the market manipulation of various securities. [ 16 ] The investigators had to make choices during the investigation and focused on two groups of individuals. [ 17 ] The first was Jean-François Amyot’s group of 40 natural and legal persons.

The second was Andrea Cortellazzi’s group of 60 natural and legal persons. The petitioners are part of the second group. Both groups worked together in a vast multi-step market manipulation scheme. In addition, various prête-noms were used. [ 18 ] The investigators had to make several requests abroad to obtain documents and information. Four search warrants were executed at different addresses. Several boxes of documents and computer equipment were seized. [ 19 ] Counsel for the AMF divided the individuals into groups Consortium 1-2-3-4, for four trials.

Several dozen witnesses were called to testify at these trials. [ 20 ] The petitioners are part of the Consortium 3 trial, which focuses on the Cortellazzi group. At the outset, in addition to the petitioners, several other defendants were included in this group. Some of them pleaded guilty, and the status of others changed. Only Cortellazzi and Savaris will stand trial. [ 21 ] In May 2016, the RCMP informed investigator Laforge that X, one of the defendants, was a civilian undercover agent working for the RCMP. Another defendant, Lessard, became a collaborator of the respondent.

Michel de Montigny, also a defendant, pleaded guilty to the charges against him and collaborated with the prosecution.

[ 22 ] Michel de Montigny became a witness for the respondent against the petitioners. [ 23 ] The change of status of these various individuals generated a lot of work for the investigators. Procedural history [ 24 ] On January 15, 2015, Cortellazzi was served with a statement of offence. Savaris was served with a statement of offence by a special method of service, via newspaper (the Journal de Montréal ), and on January 27, 2015, on the AMF’s website. [ 25 ] Savaris did not appear before the Court when required to do so. On May 20, 2015, a failure to appear was registered against him.

On May 24, 2017, counsel for the AMF informed the Court that Savaris had communicated with him. Although Savaris was aware of the court date (May 24, 2017), he was nevertheless absent. [ 26 ] On the day of the trial, September 5, 2017, Savaris was represented by Mtre Pentefountas, and was relieved of his failure to appear. [ 27 ] May 20, 2015: 1st pro forma date. Cortellazzi was represented by Mtre Frédéric Carle. A failure to appear was registered against Savaris for not answering the notice to appear. [ 28 ] September 2, 2015: 2nd pro forma date.

The AMF informed the Court that the first disclosure of evidence had been made and suggested that a date be set for a case management conference to move things forward. The Court found that it was too soon. The case was postponed to January 20, 2016. [ 29 ] January 20, 2016: 3rd pro forma date. Disclosure of evidence numbers 2 and 3 were made. [ 30 ] March 23, 2016: 4th pro forma date and first case management conference. Disclosure of evidence number 4 was made. On March 3, 2016, the petitioner served the AMF with an application for a joint hearing. The Court set a date for the hearing of the application.

On September 26, 2016, the Honourable Dominique B. Joly heard the application, and it was dismissed on November 4, 2016 (written judgment dated November 4, 2016). [ 31 ] May 11, 2016: 5th pro forma date and 2nd case management conference. Defendant Ryan served an application for a stay of proceedings and for a separate trial. [ 32 ] May 25, 2016: 6th pro forma date and 3rd management conference. The Court followed up on the various applications. [ 33 ] June 15, 2016: 7th pro forma date and 4th management conference. Disclosure of evidence number 5 was made. [ 34 ] September 21, 2016: 5th management conference.

Mtre Carle filed an application to cease representing in the Cortellazzi file. Mtre Calaritis appeared for Mr. Cortellazzi. Paradis J.C.Q. recused himself. [ 35 ] September 23, 2016: 8th pro forma date and 6th case management conference. Joly J.C.Q. replaced Paradis J.C.Q.

The Court set dates for the hearing of the applications, including Ryan’s application, which was joined with Cortellazzi’s. [ 36 ] September 26, 2016: hearing of Cortellazzi’s application for a joint trial before Joly J.C.Q. [ 37 ] September 28, 2016: hearing of one of defendant Ryan’s applications. [ 38 ] October 20, 2016: hearing of one of defendant Lessard’s applications. [ 39 ] November 9, 2016: 9th pro forma and 6th case management conference. The AMF informed the Court of the discovery of a civilian undercover agent in the file.

The AMF withdrew three charges against that person, known as X. [ 40 ] December 20, 2016: 10th pro forma date and 7th case management conference. The AMF informed the Court that disclosure of evidence number 6 had been made. The AMF was ready to proceed and estimated that it needed four weeks to present its evidence. The defence also stated that it required four weeks. The Court had no date for an eight-week hearing and postponed the case to February 2017. [ 41 ] February 15, 2017: 11th pro forma date and 8th case management conference.

Disclosure of evidence numbers 8 and 9 were made. The Court announced that new dates would be available due to new judicial appointments and the availability of courtrooms at Gouin and Bellechasse. Trial dates could not be set due to the absence of Cortellazzi and his counsel that day. [ 42 ] February 28, 2017: Gilles Garneau J.C.Q. dismissed the applications for stays of proceedings due to unreasonable delays presented by various defendants of the Consortium group, including Cortellazzi. [ 43 ] March 8, 2017: 12th pro forma date and 9th case management conference.

Postponement to March 10, 2017. [ 44 ] March 10, 2017: 12th pro forma date and 9th case management conference. The AMF announced that disclosure number 9 had been made and that it was nevertheless ready to set a date for the trial. Mtre Calaritis told the Court that he required only one day to present his evidence. At the AMF’s suggestion and to ensure that the Consortium 3 trial be held as soon as possible, the Court changed the trial dates so that the Consortium 4 trial would be held after the Consortium 3 trial. [ 45 ] March 17, 2017: 13th pro forma date and 10th case management conference.

The Court followed up on various preliminary applications. Mtre Calaritis stated that he would not present an application for a stay of proceedings. [ 46 ] March 20, 2017: 14th pro forma date and 11th case management conference. Filing of admissions signed by Mtre Calaritis. [ 47 ] March 22, 2017: defendant Ryan pleads guilty. [ 48 ] April 12, 2017: 15th pro forma date and 12th case management conference. The Court followed up on Lessard’s applications. [ 49 ] May 24, 2017: 16th pro forma date and 13th case management conference. The AMF informed the Court that petitioner Savaris had communicated with it .

He was aware of the date of May 24, 2017, but was nevertheless absent. [ 50 ] June 21, 2017: 17th pro forma date and 14th case management conference. Disclosure of evidence numbers 10 and 11 were made. [ 51 ] September 5, 2017: start of Cortellazzi and Savaris’s trial.

Savaris was represented by Mtre Pentefountas and relieved of his failure to appear. [ 52 ] October 10, 2017: the AMF’s evidence is closed. (On October 2, 2017, the AMF closed its case and reopened it with the Court’s authorization) [ 53 ] October 12, 2017: 15th case management conference: the petitioners told the Court that due to the reopening of the case by the AMF, they must cross-examine certain witnesses because of the new evidence heard at that time.

They also stated that they would file applications for stays of proceedings due to unreasonable pre- and post-charge delays. [ 54 ] Mtre Calaratis told the Court that the defence required three to five days to present its evidence. Mtre Pentefountas estimated requiring three days. [ 55 ] At this management conference, the Court gave very specific directives on its requirements for the presentation of the applications for stays of proceedings due to unreasonable delays.

Given the time required to obtain the recording, the stenographer's notes, and the parties’ availabilities, the Court set eight new trial dates. [ 56 ] November 28, 2017: trial continued: cross-examination. Start of Cortellazzi’s defence. [ 57 ] November 28 and December 8, 2017, May 1, May 10, June 20, 2018: Cortellazzi’s defence. [ 58 ] June 20, 2018: start of Savaris’s defence. [ 59 ] June 26, 2018: end of Savaris’s defence.

On the same date, at the end of the hearing of the evidence, the petitioners told the Court that they would each file an application for a stay of proceedings due to unreasonable delays. [ 60 ] At a case management conference held that same day, the Court found that the actual or anticipated end of trial was November 1, 2018. As it had done on October 12, 2017, it repeated its directives to the parties concerning the presentation of the applications, when the parties had informed the Court that they would file applications for stays of proceedings due to unreasonable pre and post-charge delays.

Those applications were never filed. [ 61 ] August 22, 2018: the AMF informed the Court of its intention to seek the

summary

dismissal of the applications for stays of proceedings due to unreasonable delays served by the petitioners. [ 62 ] September 19, 2018: hearing of the applications for stays of proceedings due to unreasonable delays. The petitioners discontinued their applications after the AMF finished its submissions. The Court noted that despite the directives, the applications did not contain any documents or details concerning the alleged delays. [ 63 ] April 10, 2019: waiting for stenographer’s notes.

The Court set September 24, 2019, as the date the parties’ arguments would be heard. [ 64 ] September 24, 2019: Mtre Calaratis asked for a postponement (his spouse was giving birth). The Court postponed arguments to January 28, 2020. [ 65 ] January 28, 2020: Arguments postponed to January 30, 2020. [ 66 ] January 30, 2020: hearing of an application for

summary dismissal presented by the respondent in response to the second applications for stays of proceedings due to unreasonable delays presented by the petitioners. The Court took the application under advisement. The decision was rendered on March 6, 2020. Arguments had to be postponed. [ 67 ] March 6, 2020: the Court granted the application for

summary dismissal and dismissed the petitioners’ applications. The Court set March 24 and 25, 2020, as the dates the parties’ arguments would be heard. [ 68 ] March 24, 2020: arguments postponed due to the pandemic. All time limits were suspended by order in council due to the pandemic. On March 24, 2020, Joly J.C.Q. postponed arguments to June 18, 2020. [ 69 ] June 18, 2020: Arguments postponed to November 12 and 13, 2020, due to the pandemic. [ 70 ] August 31, 2020: End of the suspension of time limits. [ 71 ] November 12, 2020: Arguments. The Court took the case under advisement.

Postponement to January 20, 2021. Case under advisement [ 72 ] January 20, 2021: the Court informed the parties that the French judgment had been drafted and sent for translation. Postponement to March 23, 2021, while awaiting translation. [ 73 ] March 23, 2021: waiting for translation. Postponement to May 27, 2021. [ 74 ] May 27, 2021: Although the judgment had been translated, it could not be rendered because the petitioners presented the applications for stays of proceedings due to unreasonable delays at issue in this judgment. The respondent announced that it would present an application for

summary dismissal of the applications. [ 75 ] June 14, 2021: the Court dismissed the application for

summary dismissal presented by the respondent against the applications. Postponement to July 28, 2021, to follow-up on the applications presented, which had to follow the Court’s directives. [ 76 ] July 28, 2021: postponement to September 30, 2021, for the same reasons. [ 77 ] September 30, 2021: postponement to October 19, 2021, for the same reasons. [ 78 ] October 19, 2021: postponement to November 12, 2021, for the same reasons. [ 79 ] November 12, 2021: the Court scheduled the hearing of the applications for March 22, 2022. [ 80 ] March 22 and 23, September 23, 2022: hearing of these applications.

Computation of delay [ 81 ] In this case, the presumptive ceiling is 18 months. [ 82 ] The parties agree on the computation of the delays and their characterization, except with respect to a certain part of the “defence” delay attributed to petitioner Savaris.

[ 83 ] They also agree on the date the trial ended, that is, November 12, 2020. These delays are the following: Cortellazzi From 15/01/2015 to 12/11/2020: Total delay: 2,128 days Defence delay: 316 days AMF delay: 0 Net delay: 2,128 – 316 = 1,812 days [ 84 ] The delays exceed the 18-month ceiling and are presumed unreasonable. [ 85 ] According to the respondent, there are exceptional circumstances that can be characterized as discrete events for a total of 533 days, which the petitioner does not contest.

Savaris [ 86 ] According to the respondent, the delay began on May 24, 2017, the date the petitioner acted as a result of service in the newspapers. The petitioner is of the view that the delay should start on January 27, 2015, the date of service in the newspapers. [ 87 ] From 24/05/2017 to 12/11/ 2020: total delay: 1,268 days.

Defence delay: 255 days AMF delay: 0 Net delay: 1,268 days – 255 days = 1,013 days [ 88 ] The delays exceed the 18-month ceiling and are presumed unreasonable. [ 89 ] According to the respondent, the exceptional circumstances that can be characterized as discrete events account for 448 days, which the petitioner does not contest. The petitioner contests the delay of 255 days. We will return to this. Conclusion [ 90 ] For each petitioner, the 18-month presumptive ceiling has been exceeded. The delay is presumed unreasonable, and it is up to the respondent to justify it by exceptional circumstances.

Positions of the parties Respondent [ 91 ] In the respondent’s view, some delays should be subtracted from the net delay, because they represent discrete events. Furthermore, this is a particularly complex case. [ 92 ] If the Court finds otherwise, a transitional exceptional circumstance should apply, because the charges were brought prior to the ruling in Jordan . Petitioners

[ 93 ] In the petitioners’ view, this case is neither particularly nor moderately complex. It is a penal matter that was treated like a criminal matter. It is a case where there is abundant evidence, but that does not make it a complex case. [ 94 ] The delays caused were the result of the AMF’s choice to proceed jointly against several co-accused. Some of the delays were also caused by the wait for the stenographer’s notes. [ 95 ] Petitioner Savaris argues that the respondent’s investigators did not make the effort required to serve him with the proceedings.

From 2015 to 2017, he could be reached, because he had an email address as well as Facebook and LinkedIn profiles. Furthermore, a delay of 255 days should not be attributed to him. Applicable law [ 96 ] Since Jordan , [3] the Courts must use the new analytical framework to apply s. 11(

b) of the Charter . [ 97 ] At the heart of this new framework is a presumptive ceiling beyond which delay — from the charge to the actual or anticipated end of trial — is presumed to be unreasonable unless it is justified by exceptional circumstances. The presumptive ceiling is 18 months or 30 months, depending on the circumstances. [ 98 ] In this case, the presumptive ceiling is 18 months.

To determine whether the presumptive ceiling has been reached, however, the Court must make a calculation. [ 99 ] First, the Court must calculate the total delay between the charges and the actual or anticipated end of trial. [ 100 ] Once that delay is established, the Court must subtract the delay attributable to the defence, including the periods waived. At the end of the calculation, the Court must determine whether the remaining delay is above or below the presumptive ceiling. [ 101 ] A delay that exceeds the ceiling is presumed unreasonable.

The Crown may rebut this presumption by showing that the delay is reasonable because of exceptional circumstances. [ 102 ] Exceptional circumstances lie outside the Crown’s control in the sense that they are reasonably unforeseen or reasonably unavoidable, and Crown counsel cannot reasonably remedy the delays once they arise. [ 103 ] The Crown must establish not only the existence of exceptional circumstances, but also the reasonable available steps it took to avoid and address the problem before the delay exceeded the ceiling. [ 104 ] Exceptional circumstances fall into two categories: discrete events and particularly complex cases. [ 105 ] The delay caused by any discrete exceptional events must be subtracted from the total delay to determine whether the ceiling was exceeded. [ 106 ] Exceptional circumstances also cover a second category, namely, cases that are particularly complex. [ 107 ] As the Supreme Court wrote in Jordan : [77] … As for the nature of the evidence, hallmarks of particularly complex cases include voluminous disclosure, a large number of witnesses, significant requirements for expert evidence, and charges covering a long period of time.

Particularly complex cases arising from the nature of the issues may be characterized by, among other things, a large number of charges and pre-trial applications; novel or complicated legal issues; and a large number of significant issues in dispute. Proceeding jointly against multiple co-accused, so long as it is in the interest of justice to do so, may also impact the complexity of the case. [ 108 ] As the Court also noted in Jordan : [81] To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.

As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. The seriousness or gravity of the offence cannot be relied on, although the more complex cases will often be those involving serious charges, such as terrorism, organized crime, and gang-related activity. Nor can chronic

institutional delay be relied upon. Perhaps most significantly, the absence of prejudice can in no circumstances be used to justify delays after the ceiling is breached. Once so much time has elapsed, only circumstances that are genuinely outside the Crown’s control and ability to remedy may furnish a sufficient excuse for the prolonged delay. [ 109 ] When exceptional circumstances arise from the complexity of the case, complexity will justify the delay only where the Crown developed and followed a concrete plan to minimize the delay.

For example, the Court must determine whether the Crown’s decision to lay multiple charges or to proceed against multiple accused unduly complicated the proceeding. [ 110 ] Although the analytical framework and the presumptive ceiling apply to matters that were pending when Jordan was rendered, this is subject to two qualifications. [ 111 ] In cases where the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the ruling in Jordan . [ 112 ] This transitional exceptional circumstance will apply when the Crown satisfies the Court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. [ 113 ] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

Analysis Service of the statement of offence on Savaris [ 114 ] According to the petitioner, the respondent did not make the effort required in 2015 for him to receive the statement of offence. He could be reached on certain social media, among other places. Respondent’s evidence [ 115 ] The respondent called investigator Daniel Gallant to testify about the steps he took to reach petitioner Savaris. [ 116 ] Mr. Gallant stated the following, among other things: • The AMF conducted searches with Equifax, the SAAQ, Passport Canada, and Hydro Québec to locate the petitioner.

There were three different addresses under Savaris’s name. It was impossible for the bailiff to serve him with the proceeding. • Investigator Gallant did not try to contact Savaris on social media. • The notice of service was published in the Journal de Montréal and on the AMF’s website. • The investigator recalls that in November 2010, Savaris asked him to return certain personal items. • The AMF wanted to examine the petitioner in April 2011.

Investigator Gallant tried to reach him by telephone, without success, because Savaris did not pick up. • The investigator had no contact with Savaris from January 2015 to May 2017. Savaris [ 117 ] Among other things, the petitioner testified on his situation from 2015 to 2017. • In February or March 2011, he quit the firm of Andrea Cortellazzi located at 1212 Crescent St. following an argument. The petitioner did not own a computer or a cell phone since both belonged to Andrea. • When investigator Gallant tried to reach him, he did not have a cell phone.

He did, however, have an email address as well as Facebook and LinkedIn profiles. • He renewed his driver’s licence only in 2017. On May 23, 2017, he called the AMF and spoke to investigator Gallant. [ 118 ] He testified about his various addresses. • In 2010, he was living on Dr. Penfield St. In December 2012, he was evicted by order of the

housing tribunal. • In December 2012, he moved to Saint-Jacques Street. In 2014, he was evicted by order of the housing tribunal. • In January 2015, he was living with a friend. His friend was evicted from the apartment in July 2015. The apartment was not in the petitioner’s name. He did not have a credit card. • In July 2015, a friend lent him space in a warehouse. He lived there for one year. • In July 2016, he rented an apartment on Waverly Street. The lease and a Hydro-Quebec account were in his name. • He had a passport, which he renewed in 2013 for 10 years.

However, he used a friend’s address when he renewed it.

Although he travelled outside Quebec, he never left Canada. • He stated that he never saw the notice in the Journal de Montréal , because he usually read The Gazette . [ 119 ] The 255-day delay that the respondent attributes to Savaris can be broken down as follows: • Cortellazzi’s application for postponement, uncontested by Savaris: 126 days • Wrongful postponement to January 28, 2020: 2 days • Postponement to January 30, 2020, for the arguments of the parties that never took place, because the petitioners each served an application for unreasonable delays.

The applications were heard on January 30, 2020: 36 days • March 6, 2020: judgment of the Court dismissing the applications: 18 days • Arguments set for November 12, 2020: 73 days. Total: 255 days Conclusion [ 120 ] The allegation of petitioner Savaris against the respondent is unfounded. [ 121 ] As established by his testimony, investigator Gallant took all the necessary steps to locate the petitioner. At one point, the petitioner’s name appeared at three different addresses.

The petitioner’s testimony establishes that, at the time of investigator Gallant’s inquiries, the petitioner’s passport and driver’s licence had expired, he moved frequently, and there was no apartment in his name. In 2013, he renewed his passport but used a friend’s name. [ 122 ] In addition, the service in the newspapers was lawful and validly made. [ 123 ] The Court is of the view that the respondent took all necessary steps to locate the petitioner and serve him with the statement of offence other than in the newspapers.

The Court also finds that for petitioner Savaris, the delay began on May 24, 2017, the date he communicated with the respondent for the first time. [ 124 ] The 255-day delay is attributable to petitioner Savaris, who presented an application for unreasonable delays, as did petitioner Cortellazzi. Exceptional Circumstances Discrete and exceptional events [ 125 ] According to the respondent, there are 533 days of discrete events for petitioner Cortellazzi, and 448 days for Savaris.

According to the respondent, Cortellazzi’s 533 days can be broken down as follows: [ 126 ] September 26, 2016: 2 days: hearing of an application by the petitioner. [ 127 ] September 28, 2016: 22 days: hearing of an application by defendant Ryan. [ 128 ] October 20, 2016: 20 days: hearing of an application by defendant Lessard. [ 129 ] November 9, 2016: 41 days: the respondent discovers the existence of an RCMP civilian undercover agent within Consortium. The respondent had to make a disclosure of additional

evidence and examine the new circumstances. [ 130 ] June 26, 2018, to April 10, 2019: 288 days: Savaris’s defence ends. From that date until April 10, 2019, the parties were waiting for the stenographer’s notes to be completed before scheduling a date for arguments. [ 131 ] March 24, 2020, to June 18, 2020: 86 days: postponement of arguments to a later date due to the pandemic. [ 132 ] June 18, 2020, to August 31, 2020: postponement of arguments to November 12, 2020, due to the pandemic.

According to the respondent, Savaris’s 448 days can be broken down as follows: [ 133 ] June 26, 2018, to April 10, 2019: 288 days: waiting for stenographer’s notes. [ 134 ] March 24, 2020, to June 18, 2020: 86 days: postponement of arguments to a later date due to the pandemic. [ 135 ] June 18, 2020, to August 31, 2020: 74 days: postponement of arguments to November 12, 2020, due to the pandemic. [ 136 ] Although the parties agreed to characterize all of these delays as discrete events for both petitioners, the Court does not share their view.

Indeed, some of these delays do not meet the definition of discrete events set out in Jordan . Conclusion [ 137 ] The applications submitted by the defendant(

s) or co-defendant(

s) and the time spent waiting for the stenographer’s notes cannot be characterized as discrete events. The delays created by the pandemic, however, and the unexpected discovery of a civilian undercover agent are discrete events. [ 138 ] The Court is of the view that these circumstances were outside the respondent’s control and reasonably unforeseen. The respondent could not do anything to remedy the delays caused by the pandemic. [ 139 ] The respondent acted promptly regarding the delays caused by the discovery of the civilian agent on November 9, 2016.

Indeed, on December 20, 2016, the date of the 7th case management conference, the respondent had provided the disclosure related to this discovery and was ready to set a trial date. [ 140 ] The Court will not revisit the characterization or the length of the other delays, on which the parties have agreed. [ 141 ] Accordingly, the Court makes the following calculation: Cortellazzi [ 142 ] 1,812 days (net delay) – 201 days = 1,611 days (53.7 months ) Savaris [ 143 ] 1,013 days (net delay) – 160 days = 853 days (28.43 months). [4] [ 144 ] These delays also exceed the 18-month presumptive ceiling and are presumed unreasonable.

Was this a particularly complex matter? [ 145 ] According to the petitioners, this is above all a voluminous file that is penal in nature but was treated as if it were criminal in nature. They emphasize that the concept of “pump and dump” is not complex.

[ 146 ] As Myriam Lachance J.C.Q. wrote in Bossé : [5] [ translation ] [75] Indeed, it is important to note that the characterization of the complexity must be assessed in light of the category of offence involved. [76] An offence under the SA cannot be compared to a statement of offence for driving over the speed limit. [77] However, both of these provincial regulatory offences are found in the category of cases that must be heard within 18 months. [78] That ceiling does not distinguish the complexity of the offences within the same category.

It is therefore up to the courts to do so, based on the facts of each case. [ 147 ] She characterized that case as one of: [ translation ] “moderate complexity in a jurisdiction with significant institutional delay problems.” [6] [ 148 ] As Marchi J.C.Q. wrote in Downshire Capital inc. : [7] [ translation ] It would be illogical to compare its “complexity” with that described in Jordan .

On the contrary, the nature of the case must be taken into account, and “apples must be compared with apples”. [ 149 ] Let us see how this applies here. [ 150 ] In the Court’s view, this case can be characterized as follows: • voluminous disclosure including an additional disclosure due to the discovery of a civilian undercover agent; • numerous case management conferences; • the Consortium investigation concerned 27 natural and legal persons; • an offence of market manipulation over a long period of time, that is, from February 26, 2007, to December 29, 2010; • the Court heard the petitioners’ trial.

The pump and dump scheme used by Andrea Cortellazzi’s organization is complex. In a hearing that lasted a day and a half, an expert witness explained to the Court the foreign laws that apply to this case.

Other witnesses explained to the Court the use of shell companies, false documents, and press releases, and prête-noms necessary for the operation of the scheme. • sixty witnesses had to be heard during this six-week trial; [ 151 ] In addition, the Court is of the view that, during the proceedings, the respondent developed and followed a concrete plan to minimize the delay. [ 152 ] Among other things, at the first opportunity, the respondent asked for a case management conference and provided lists of admissions and a trial manual to the defendants. [ 153 ] The respondent decided to try several co-defendants jointly, which was justified in this case.

It divided them into different trials and focused on the Consortium 3 trial.

On December 20, 2016, the respondent declared that it was ready to proceed. [ 154 ] In the circumstances, given the nature of the charges, the volume of evidence, and the complexity of the case, like Lachance J.C.Q. in Bossé , the Court finds that this case is of moderate complexity for a provincial penal matter in a jurisdiction that had significant institutional delay problems at the time. [ 155 ] The proceedings instituted in this file resemble those of a fraud case and clearly make it “moderately complex” when compared to other files where the defendant is prosecuted for infringing a provincial statute.

The respondent’s management of this file minimized the delays incurred, to the extent possible. The transitional exceptional circumstance [ 156 ] In Huard , [8] our Court of Appeal summarized two situations where a transitional exceptional circumstance may apply: (…) a “transitional exceptional circumstance” may apply when, “the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it

previously existed.” A transitional exceptional circumstance may also apply “where the case that is of moderate complexity in a jurisdiction with significant institutional delay problems.” [ 157 ] It should be added that the petitioners do not argue that the delays caused them prejudice. Furthermore, although these applications were presented while the case was under advisement, they raise no argument with respect to this kind of delay. [ 158 ] The charges in this case were brought before Jordan.

Therefore, the Court has no hesitation in applying the transitional exceptional circumstance for the following reasons: • much of the delay predates Jordan ; • the respondent is not responsible for any delays; on the contrary, the respondent managed this file to control the delays, to the extent possible. The Court also made efforts to move proceedings forward in this case.

The numerous case management conferences are an example of those efforts; • this “moderately complex” file took place in a jurisdiction with significant institutional and systemic delay problems at the time; • the petitioners expressed their desire for a “speedy” trial only late in the judicial process; • in this regard, although they twice presented applications for stays of proceedings due to unreasonable post-charge delays, they discontinued their first applications in the course of proceedings (on December 19, 2018), and their second applications were dismissed on the ground that they were tardy and dilatory (judgment of the undersigned dated March 6, 2020); [9] • the issue of post-charge delays could have been decided long before today; and; • the Court finds that although their third applications, which were presented while the case was under advisement, did not mention this delay, they were also tardy. [ 159 ] Even if the institutional delays are beyond what was considered acceptable in Morin , [10] this delay, although long, is not unreasonable when a transitional exceptional circumstance is applied.

FOR THESE REASONS, THE COURT: DISMISSES the applications for stays of proceedings due to unreasonable delays. __________________________________ JOSÉE BÉLANGER, J.C.Q. Mtre Sébastien Simard

Mtre Marie-Michelle Côté Counsel for the Autorité des marches financiers Prosecutor / Respondent Mtre Tom Pentefountas for Antonio Savaris Mtre George Calaritis for Michael Raso Cortellazzi Accused / Petitioners Dates of hearing March 22, 23, 2022 September 23, 2022 [4] For the purposes of the analysis, the Court calculated the delays in months. The parties’ calculations may differ from those of the Court by a few days; this does not change the final result. [5] Bossé c. Autorité des marchés financiers , 2017 QCCQ 6800 .