2010 QCCQ 19067, 2010 QCCQ 19067

Lebeau c. R. JL3983 Charte canadienne – art. 11b) – Délai déraisonnable – conduite avec capacités affaiblies causant la mort et causant lésions – arrêt des procédures. 2010 QCCQ 19067 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF JOLIETTE LOCALITY OF JOLIETTE No.: 705-01-048978-060 DATE: December 21, 2010 ______________________________________________________________________ PRESIDING: THE HONOURABLE DOMINIQUE LAROCHELLE, J.C.Q. ______________________________________________________________________ SERGE LEBEAU Applicant-Accused v.

HER MAJESTY THE QUEEN Respondent-Prosecutrix ____________________________________________________________________ DECISION ON A MOTION FOR STAY OF PROCEEDINGS FOR VIOLATION OF THE RIGHT TO BE TRIED WITHIN A REASONABLE TIME ( Sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) ____________________________________________________________________ 1.

BACKGROUND [ 1 ] On October 29, 2006, the applicant was driving a vehicle involved in a traffic accident during which his own sister-in-law was killed and her uncle was injured. [ 2 ] The respondent argues that the alcohol consumption of the accused makes him criminally responsible for this tragic accident and laid charges on December 21, 2006. [ 3 ] For the reasons explained hereafter, the trial did not begin until November 25 and 26, 2010. [ 4 ] The applicant, aged 51, is a truck driver with no criminal record and with a spotless driving record.

He firmly denies his criminal liability for this accident. [ 5 ] He argues that his right to be tried within a reasonable time, protected by

section 11(

b) of the Charte r, was infringed and seeks a stay of proceedings as a constitutional remedy. This is the motion before the Court. 2. ISSUES [ 6 ]

(1) Was the constitutional right of the accused to be tried within a reasonable time, protected by

section 11(

b) of the Charter , infringed by the cumulative effect of the delays incurred since the swearing of the information?

(2) If so, is a stay of proceedings, permitted by section 24(1) of the Charter , the just and appropriate remedy? 3.

Facts [ 7 ] The information was sworn on December 21, 2006, and the initial appearance of the accused was scheduled for March 16, 2007. [ 8 ] Three charges were laid: • On or about October 29, 2006, in the Épiphanie district of Joliette, did drive a motor vehicle while his ability to operate the vehicle was impaired by alcohol or drugs and thereby caused the death of Francine Lapointe, thereby committing an indictable offence under section 255(3) of the Criminal Code ; • On or about October 29, 2006, in the Épiphanie district of Joliette, did drive a motor vehicle while his ability to operate the vehicle was impaired by alcohol or drugs and thus caused injuries to C.

B., thereby committing an indictable offence under section 255(2) of the Criminal Code ; • On or about October 29, 2006, in the Épiphanie district of Joliette, drove a motor vehicle while having a concentration of alcohol in excess of 80 milligrams per 100 milliliters of blood, thereby committing an indictable offence under sections 253 (

b) and 255(1) of the Criminal Code . [ 9 ] The accused was initially represented by Mtre Robert Lacoste. [ 10 ] Although the complaint was authorized on December 21, 2006 , the Crown apparently did not complete disclosure to the defence until December 3, 2007, almost one year later. [11] On that date, the respondent submitted to the defence the preliminary report of Officer Bernard Ouellette, Sûreté du Québec collision reconstructionist.

Prior to that, on August 20, 2007, the accused had had to write to the respondent to obtain disclosure of this evidence, as well as the photos taken by the police and any other relevant documents not yet disclosed. [1] [12] Mtre Lacoste needed time to examine this new evidence, and the case was rescheduled to February 15, 2008. [13] On February 15, 2008, the accused elected to be heard by a judge alone after the holding of a preliminary inquiry, which was scheduled for April 17, 2008. [14] On April 17, 2008, the inquiry was postponed pro forma to June 26, 2008, since Mtre Lacoste was seriously ill. [15] On June 26, 2008, Mtre Lacoste returned to the court and requested a new date for the inquiry.

The date of October 27, 2008, was set. [16] On July 1, 2008, Mtre Lacoste died. [17] The accused therefore requested the services of Mtre Fréchette, who took over the entire file and prepared the preliminary inquiry, which was, in fact, held on October 27, 2008. [18] At the preliminary inquiry, the defence had the opportunity to cross-examine C.B., the driver of the other vehicle involved in the accident; the investigator, Stéphanie Auger; and the collision reconstructionist, Bernard Ouellette.

Subsequently, in light of the evidence thus gathered, the accused, with the consent of the Crown, moved on to the trial stage, in accordance with the procedure

outlined in

section 549 of the Criminal Code . [19] After the accused’s committal for trial, the case was postponed pro forma until January 13, 2009. [20] Meanwhile, in light of the evidence revealed by the inquiry, Officer Bernard Ouellette corrected and completed his investigation report, which was not disclosed to the accused until February 25, 2009. [21] The case was then postponed until April 22, 2009, to give the accused time to verify this new evidence. [22] On April 22, 2009, the parties were now ready to call the case to trial, but a pre-hearing conference was required by the Court considering the anticipated length of two days.

The case was postponed to May 28 for this pre-hearing conference. [23] The pre-hearing conference was postponed several times on consent: from July 22, 2009, to October 5, 2009, and from November 10, 2009, to December 2, 2009. During this time, discussions took place between the parties. [24] On December 2, 2009, the pre-hearing conference did not succeed in limiting the issues, and the trial was set for two days on May 26 and 27, 2010. [25] On May 6, 2010, just twenty days before the trial was set to begin, counsel for the respondent filed a notice of intent to call an expert witness, Mr.

Bernard Ouellette, a collision reconstructionist at the Sûreté du Québec. [26] This “delay” by counsel for the prosecution had no impact on the trial since the reports of the collision reconstructionist had been disclosed to the accused long before that time, and the accused had had time to adequately prepare in that regard. [27] However, on May 6, 2010, counsel for the respondent sent the accused another notice of intent, but this time concerning the chemist and forensic toxicologist André Dion, whose report, which was, however, dated February 11, 2010, accompanied the notice in question. [28] As this case was governed by the former provisions of the Criminal Code (2006), and as the defence argued that the Crown could not benefit from the presumption in section 258(1)(

d) Cr. C. because more than two hours had passed, the filing of the notice and the submission of the report at such a late date forced the accused to request a postponement. [29] A motion to cancel the subpoena was thus presented on May 19, 2010. It was granted on the ground that the prosecution was late in providing the report and the notice.

The trial was set pro forma for June 22, 2010, to give the defence time to discuss it with its expert and reset the date according to the respective availabilities of the parties’ experts. [30] On June 22, 2010, the trial was set for November 25 and 26, 2010, nearly forty-nine months after the events and more than forty-seven months after authorization for laying the information. 4.

POSITIONS OF THE PARTIES Position of the applicant-accused [31] The accused argues that this delay of more than forty-seven months is unreasonable and justifies the intervention of the Court to verify the explanation for that delay, whether there was a waiver, and whether there was prejudice to the accused.

[32] As the information was sworn and the complaint authorized on December 21, 2006, the accused argues that the delays should be considered as of that date. [33] Therefore, the delay of eleven months and thirteen days between the time the complaint was authorized and December 3, 2007, when disclosure was reportedly completed, is attributable to the respondent. [34] The subsequent delay of two months and twelve days before the date for the preliminary inquiry was set is an inherent time requirement that must be included in the delays to be considered for the purposes of this motion.

The same is true for the delay of two months and two days between the date the inquiry was scheduled and the date it was supposed to be held. [35] The delay of six months and ten days between the date the preliminary inquiry was postponed because of the illness of counsel for the accused (April 17, 2008) and the date on which the inquiry was actually held (October 27, 2008) is not attributable to the respondent and does not constitute either an institutional delay or an inherent time requirement, and therefore it should not be considered for the purposes of this motion. [36] The delay between the date the inquiry was held and February 25, 2009, is not attributable to the respondent and does not constitute either an institutional delay or an inherent time delay, so it should not be counted for the purposes of this motion. [37] The delay of one month and twenty-eight days between February 25, 2009, the date of an additional disclosure, and April 22, 2009, was a delay caused by the respondent and can be attributed to it. [38] The delays between April 22 and July 22 for the holding of the pre-hearing conference are institutional delays that must be considered for the purpose of determining the reasonableness of the delay, representing three additional months. [39] At the stage of the pre-hearing conference, the accused submitted, between July 22, 2009, and October 5, 2009, new arguments to the Crown and waited for it to adopt a position with respect to them. [40] The delay between November 10 and December 2, 2009, for the pre-hearing conference was obtained on consent. [41] As for the delays between December 2, 2009, and November 25, 2010, that is, eleven months and twenty-three days, they are partly attributable to institutional delays and partly attributable to the respondent. [42] The accused thus submits that the delay that is in no way attributable to the accused or his counsel and for which he never agreed to a waiver is a delay of thirty-five months and twenty-three days, which constitutes a clearly unreasonable delay exceeding the parameters set by the higher courts. [43] The accused submits that significant prejudice resulted from all those delays.

To establish prejudice and thus support his position that his 11(

b) Charter right to be tried within a reasonable time was infringed, he testifies as follows. - He has been a truck driver for twenty-two years; - He has no criminal record and has a spotless driving record; - The charges are the result of a tragic accident for which he is not criminally responsible; - For the past four years, he has felt apprehensive about those charges. He thinks about them every day and feels that he is living with a sword hanging over his head; - He is aware of the seriousness of the charges and that his fate is in the hands of the Court. Consequently, he fears that he will be

found guilty and sent to jail; - He fears that he will lose his driving license and thus his job and perhaps even the right to practice his profession; - He has paid high legal fees to defend himself, and these were increased by the change of lawyer following the death of Mtre Lacoste and by all the postponements; - To pay the professional fees of his lawyers, he secured a loan from his employer.

The obligation to repay it has increased his fear of conviction; - He fears being a financial burden on his wife if he is convicted and is limiting his expenditures accordingly; - He suffers from stress, insomnia, and ulcers; - The children of the sister-in-law who died in the accident support him and his claim that it was an accident without criminal responsibility, but he fears the judgment of others, which he believes he sees in their eyes; - His lawyer has informed him that the continuance of the proceedings will generate additional delays in accordance with the new requirements of Bill C-2, the retrospective effect of which was recently established by the Court of Appeal.

He will thus have to obtain additional evidence and prepare accordingly.

He reacted badly to this news and feels overwhelmed. [44] He believes that prejudice resulting from the delay may be inferred, especially when the consequences of a conviction are very serious for the accused. [45] If it had not been for the late disclosure of such important additional evidence by the prosecution, he would have filed a motion for a stay of proceedings in May 2010, since prejudice could already be inferred from the lengthy delay. [46] He thus argues that the actual prejudice suffered before May 2010 was aggravated by the postponement of the hearing to November 2010. [47] He believes that the deferral or continuation of the trial after November 25 and 26, 2010, was inevitable for the following reasons: - Between July 2, 2008, and October 19, 2010, the legal position of the Chief Attorney for the Director of Criminal and Penal Prosecutions (DPCP) was that the legislative amendments in Bills C-2 and C-13 applied only to cases whose facts had occurred after July 2, 2008, this position having been publicized by means of a directive. - Since the allegations against the accused date back to October 29, 2006, he benefited from that directive and could present a Carter defence, based on a consumption scenario. [2] Thus, if the Court believed the accused’s consumption scenario and that scenario indicated a blood alcohol concentration below the legal limit, he would be acquitted of the charge of operating a vehicle with more than 80 milligrams of alcohol per 100 millilitres of blood.

The same would be true if the judge considered that the accused’s testimony regarding his consumption scenario raised a reasonable doubt. - On October 19, the Court of Appeal of Quebec rendered a decision in R. v. Loiseau . [3] The majority concluded that amendments to the Criminal Code apply retrospectively. - Consequently, although the accused’s charges concern facts prior to July 2, 2008, he is now targeted by the new sections 258(1) ( d ), 258(1)( d .01) and 258(1)( d .1) Cr.

C. - Therefore, the accused must now present evidence tending to show both that the analysis showing blood alcohol concentration of more 80 milligrams of alcohol per 100 millilitres of blood was carried out incorrectly and that his blood alcohol concentration did not exceed the legal limit either at the time the sample was taken or at the time of the offence. - He must therefore prepare accordingly and, to do so, he requires the disclosure of additional evidence and time.

[48] The accused had not anticipated this new burden at the time of the preliminary inquiry given the legal position then adopted by the DPCP on the retrospective effect of C-2. If he had, he would have made other choices at the inquiry.

In particular, in addition to the witnesses already heard, he would have called on the prosecution’s analyst to testify as to every aspect of how the expert analysis was carried out, the qualifications of the persons involved, etc. [49] He argues that while it is theoretically possible to proceed with such verifications at this stage of the trial, the fact remains that if the judicial process continues, counsel for the accused will have to request an adjournment to ask the prosecutor for additional disclosure, specifically of the names of all the people involved in the chain of custody at the forensic laboratory, the names of the technicians who either carried out or were involved in the analysis of the accused’s blood sample, and the additional blood sample that is normally taken for the benefit of the accused, despite the expiration of the six-month time limit under section 258(1) ( d )(

i) of the Criminal Code . [50] He concludes that the amendments significantly modifying the former law are likely to affect the defence on the consumption scenario and to make the burden of raising a reasonable doubt more onerous. In addition to making the defence more difficult and complex, they will require an additional adjournment. Consequently, a stay of proceedings is the appropriate remedy; failing this, prejudice will be unjustly perpetuated.

The position of the respondent [51] The respondent generally accepts the applicant’s statements that dissect the minutes with regard to the facts that led to the postponement of the file. It disputes, however, the assessment of the division of responsibility for the delays and their legal consequences, and more specifically of those attributed to the respondent. [52] The respondent argues that the delay did not begin on December 21 since the accused was not informed of the charges until January 1, 2007. Prior to that, he did not suffer any prejudice.

It submits that almost all of the delays result from the choices of the accused and the illness of his first lawyer. [53] The delay for which it accepts responsibility is limited to one month and three days, or the delay attributable to the additional disclosure on October 10, 2007. [54] The respondent attributes three months and twenty-five days to inherent time requirements, five months and seventeen days to institutional delays, and twenty-eight months and sixteen days to the defence.

The responsibility for the delay of four months and twenty- six days is shared, given the postponements on consent. [55] The Crown asks that the case be decided on its merits for the following reasons: - There is “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law”, [4] particularly given the seriousness of the offences and the consequences for the victims; - The prejudice, if there is any, is limited since the accused was not deprived of his freedom and was not required to present himself at court each time his case appeared on the roll; - The accused contributed to the delays by not always choosing the closest available date and by requesting that a preliminary inquiry be held, which delayed the trial; - His choices show the absence of prejudice.

The Crown rather cautions the Court on the risk that the right to be tried within a reasonable time can be “ an offensive weapon in the hands of the accused ”; [5] -

Section 11(

b) does not grant the right to a perfect trial, free of the normal disadvantages of a pending criminal charge; - The delays anticipated for the continuation of the trial should not be considered on this motion.

[56] The accused cannot complain about the delay in disclosing the reports of the collision reconstructionist. The respondent supports this claim by asserting that the facts in the reports exist independently from the opinion arrived at by the collision reconstructionist and that the accused did not need the report to defend himself. 5.

ANALYSIS [57] It is important to recall that the Crown has, at all times, the obligation to bring an accused to trial and providing the necessary resources for him or her to be tried within a reasonable time. [6] Likewise, it has the burden of proving that the delay is directly attributable to the accused or that the acts of the accused indicate a deliberate attempt to delay the trial. [7] The Crown also has a duty to disclose all relevant information to the accused, and initial disclosure should occur before the accused is called upon to elect the mode of trial or plead . [8] [58] In this case, the Crown, by reproaching the accused for having chosen a preliminary inquiry and not having set a trial date before obtaining disclosure of the report of the collision reconstructionist, transfers to the accused responsibilities that are in actual fact part of its own general obligations. [59] This position ignores the fact that the accused depends entirely on the prosecution to know the factual and legal burden he must meet, the danger in this case being compounded by the legislative changes. [60] To decide the issues, we must consider the evidence in accordance with the factors proposed in Morin with regard to the objective of

section 11 ( b ). This is justified by the overall delay since the laying of the charges. The length of the delay [61] The delay began on December 21, 2006. In the absence of evidence of the date the summons was served by mail, the question is resolved by consistent case law. [9] [62] Askov established an overall delay of fourteen to eighteen months between the laying of the information and the trial itself.

In Morin , a case of driving with a blood alcohol level exceeding the legal limit, the Court stated that a delay of fourteen and a half months could not be described as a model of dispatch and must be justified. [63] The case law cited considers delays of thirteen to twenty-one months to be excessive for drinking and driving cases. [64] In this case, the total delay is four years. This delay is exceptionally long for a case of this nature. Waiver by the applicant [65] The accused did not waive the right to be tried within a reasonable time. He was entitled to receive timely disclosure.

He obtained it late, without a valid explanation. [66] He waived claiming certain delays attributable to him, and this does not constitute a waiver of his 11(

b) Charter right. Inherent delays [67] In this case, it might be complex to establish responsibility for the accident in addition to the blood alcohol level of the accused. The evidence does not show, however, the reasons why it took so long to prepare the Crown’s expert reports or that the case was complicated for the respondent. [68] At the request of the accused, certain delays inherent to the preparation of his defence have been subtracted from the total. [69] The inherent time requirements are calculated to be two and a half months.

Acts of the accused [70] The accused is responsible for certain delays, for which he accepts responsibility. These delays are attributable to the preparation of the file, the time constraints of his lawyer, and the illness of Mtre Lacoste, along with his decision not to accept the first available date on every occasion. [71] The respondent attributes to the accused’s choices all the delays requested for the preliminary inquiry to be held, arguing that

if he had wanted a speedy trial, he could have eliminated this step. This argument is not accepted by the Court. The accused elected a mode of trial authorized by Parliament.

An inquiry, which makes it possible to cross-examine prosecution witnesses and test the Crown’s case, often reveals shortfalls in the disclosure process, clarifies the issues, and shortens the legal proceedings. [72] Morin disposes of the question by affirming that the delays caused by the accused through preliminary measures should be taken into account in determining whether the overall delay is reasonable . [73] In this case, the accused chose to limit the scope of the preliminary inquiry to what he deemed necessary.

Moreover, the inquiry revealed the need for a new police expert report on the accused’s blood alcohol concentration, counsel for the respondent having been unintentionally left unaware of information contained in the statement made by M. B., a victim, on November 6, 2006, situating the accident thirty minutes earlier than the time under consideration. The holding of the inquiry was in no way a stall tactic, and the accused was justified in requesting it. [74] The respondent also faults the accused for not having tried harder to speed up the trial, which would have a bearing on prejudice.

We should note that the accused did take specific steps to move the case forward or not delay it unduly. In his letter dated August 20, 2007, he insisted to have disclosure. Despite the death of his first lawyer, he made a diligent effort to proceed on the date chosen for the preliminary inquiry. He was proactive during the pre-hearing conference. As early as May 2010, he informed the respondent of his intent to argue infringement of his right to be tried within a reasonable time, and he filed such a motion in a timely manner.

From the file as a whole, it cannot be concluded that the conduct of the accused corresponds to that of a person who does not want a speedy trial and is benefited by the delay. [10] [75] The accused is responsible for delays totalling slightly more than thirteen months, including those that occurred by agreement of the parties.

Acts of the Crown Disclosure of the reports of the collision reconstructionist and notices of intent [76] There is no explanation for the fact that it took the respondent almost a year (December 2006 to December 2007) to provide the defence with the preliminary report of Officer Bernard Ouellette, the S.Q. collision reconstructionist, especially since the conclusions of the preliminary report are based [ TRANSLATION ] “strictly on the examination of the physical evidence observed at the scene, such as the tire tracks, marks, and fragments as well as damage to the vehicle ” (sic). [11] [77] The time taken by Officer Bernard Ouellette to correct and complete his report between the preliminary inquiry and February 25, 2008, is also unexplained. [78] The time taken by the Crown to disclose to the defence, on May 6, 2010, the report of the chemist and toxicologist André Dion dated February 11, 2010, is explained by error or negligence.

The Loiseau effect [79] In Loiseau , [12] the Court of Appeal recognizes that the legislative changes restrict the possibility for an accused to rebut the presumption of identity between the breathalyzer results and the blood alcohol concentration and complicates the task of lawyers. [80] Furthermore, the respondent admits that, since the decision of the Court of Appeal, nothing has been done to prepare the additional disclosure to allow the accused to take it into account. At the time of the motion, the respondent was unable to say when this additional evidence would be ready. [81] New delays are to be expected.

The delays anticipated by the Loiseau effect and their possible consequences for the accused if the case should be continued are not relevant to determining whether the accused’s right has been infringed. They will be considered only at the stage of determining the remedy, if necessary.

Other delays Other delays are due to the absence of the lawyer from the Court and the time taken to study a motion of the accused. [82] While the seriousness of the charges militates in favor of a trial on the merits, it also justifies diligent and proactive conduct on the part of the Crown to ensure that the trial is held within a reasonable time. [83] The delays caused by the respondent are calculated to be more than twenty-two months.

Institutional delays [84] As observed by Beaulieu J. in a recent decision concerning a motion for a stay of proceedings for unreasonable delay with regard to driving with a blood alcohol concentration above the legal limit, [13] the judicial district of Joliette experiences extremely long

delays and an accused must wait approximately twelve months for a first trial date. He found that a sixteen-month delay, attributable to institutional limitations and to the Crown, was unreasonable and ordered a stay of proceedings. [85] In this case, the institutional delays are calculated to be more than ten months. Prejudice to the applicant [86] It must be determined whether, considering all the circumstances, the prejudice that is alleged and proven by the testimony of the applicant justifies the conclusion of an unreasonable delay and a stay of proceedings.

In this case, the Court believes the accused’s evidence to that effect. [87] This evidence establishes that prejudice to the accused's security interest by overlong subjection “to the vexations and vicissitudes of a pending criminal charge ” is quite real and contributes to making the delay unreasonable. [14] Conclusion [88] After having considered all the circumstances of the case and conducted the balancing exercise suggested by the Supreme Court in Morin , the Court concludes that the delay of four (4) years between the charging of the applicant and his trial date constitutes an infringement of his right to be tried within a reasonable time. [89] A delay of more than thirty-five months attributable to institutional delays, inherent delays, and the Crown contravenes

section 11(

b) of the Charter and justifies a remedy. Remedy [90] Section 24(1) of the Charter gives concrete expression to constitutional guarantees. There can be no right without an effective remedy. [91] The parties submit no alternative to a stay of proceedings. Faced with the breach of his 11(

b) Charter rights, the remedy authorized by the higher courts is a stay of proceedings. [92] In this case, to avoid perpetuating the infringement of this right, the only appropriate remedy is a stay of proceedings against the applicant. 6. CONCLUSIONS FOR ALL THESE REASONS, the court GRANTS the motion of the applicant-accused; DECLARES that the right of the accused to be tried within a reasonable time pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms was infringed; Under section 24(1) of the Canadian Charter of Rights and Freedoms , GRANTS a stay of proceedings on all charges. ________________________ DOMINIQUE LAROCHELLE, J.C.Q. Mtre Bruno Leclerc

For the respondent-prosecutrix Mtre Sylvain Fréchette For the applicant-accused Hearing dates: November 25 and 26, 2010