R. v. Jordan, 2022 QCCQ 9333

Martell c. R. 2022 QCCQ 9333 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTREAL “Criminal and Penal Division” No: 500-01-192173-190 DATE: June 27, 2022 ______________________________________________________________________ BY THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ DYLAN SHAWN, MARTELL

(001) BRIAN JAMES, BREMNER

(003) BAILEY CHANCE, REILLY

(004) SHAWN GERARD, MARTELL

(005) PETITIONERS-accused v. HER MAJESTY THE QUEEN RESPONDENT - prosecutor ______________________________________________________________________ JUDGMENT ON A MOTION FOR A STAY OF PROCEEDINGS PURSUANT TO SECTIONS 11

b) AND 24(2) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS [1] ______________________________________________________________________ I. Overview [ 1 ] The petitioners are all charged with aggravated assault (268 of the Criminal Code ), assault causing bodily harm (267

b) Cr.

C) and simple assault (266

a) Cr.C .). Two of them face additional charges of assaulting and obstructing a peace officer. The events giving rise to the charges occurred in the early morning hours of July 14, 2019, outside of the New City Gas Bar located at the corner of Ottawa and Ann Streets. In a nutshell, the petitioners were arrested for having instigated a violent brawl that resulted in injuries to five victims. [ 2 ] The petitioners apply for a stay of proceedings based on a breach of their right to be tried within a reasonable time under s. 11(

b) of the Charter . The total time from their first Court appearance (July 15, 2019) to the expected end of this trial (March 25, 2022) is 32 months and 10 days. Having elected to be tried before a Judge of the Provincial Court, the presumptive ceiling of 18 months established by the Supreme Court of Canada in the landmark decision of R. v. Jordan [2] has clearly been breached. [ 3 ] The Respondent Crown, for its part, concedes that the overall time frame from arrest to the anticipated end of the trial is well north of the 18-month threshold for a trial set before the Provincial Court.

However, the Crown asserts that the application should be dismissed, and that once defence delay and delay caused by the COVID pandemic are subtracted, the net delay is under 17 months. [ 4 ] Two previous attempts to proceed with the trial have faltered. The first one – set to begin in April 2020 and scheduled to last two weeks – was cancelled on account of the global COVID pandemic.

The second trial date – set for two weeks in February 2021 – was lost in order to deal with late Charter motions to exclude evidence presented by the petitioners. [ 5 ] Were it not for the actions or inactions of the defence, argued the Crown, the case would have been settled within the Jordan ceiling. Referring to the authority of the Supreme Court’s decision in Cody [3] – where it elaborated on the concept of defence delay – counsel noted that the decision to take a step, and the manner in which it is conducted, including the timeliness of the step, may be scrutinized.

A constant theme in the present matter was the defence’s inability to produce Charte r motions on time. [ 6 ] Just as importantly, the initial time set out for the Charter motions was woefully inadequate to deal with the slew of alleged rights violations submitted in the petitioners’ motions. As will be discussed in a later

chapter of this decision, the petitioners’ Charter applications were at once lengthy and complex. No rock was left unturned. Adopting a scorched earth policy, they found fault in every facet of the police investigation: the grounds for arrest, the force used by the police in controlling and arresting each one of them, the right to counsel, the warrantless seizure of the bloodstained clothing of one of the petitioners and the sufficiency of the affidavits in support of the warrants ordering the seizure of the clothing for all of the petitioners.

They even contested the right of the investigator to take pictures of their bloodstained hands and clothing without the benefit of a second caution regarding their right to counsel. [ 7 ] Inevitably, time spent on the Charter motions took away from time that would have been spent hearing trial evidence. Worse still, completing the said motions markedly exceeded the time requirements first announced by defence counsels at a case management

conference. In the end, completing the process took up an additional two hearing dates in July 2021. [ 8 ] By then, almost two years had passed since the petitioners were first arrested on July 14, 2019. At the office of the coordinating judge, the parties reserved two consecutive weeks starting on March 14, 2022, for trial evidence. The dates were confirmed before the undersigned without one of the parties raising a whimper about delays. [ 9 ] When it seemed that all the pieces were in place for a trial on the merits of the case, an eleventh-hour Jordan motion by the petitioners threw a wrench in the works.

More precisely, the motion was announced but one month before the trial was scheduled to begin. Worse still, defence counsels announced that their

schedule could not accommodate a hearing date on the Jordan motion before the scheduled start of the case. Once again, time originally scheduled for trial evidence has been lost to hearing the last-minute motion of the petitioners. [ 10 ] The petitioners, for their part, take no responsibility for the late filing of the applications to exclude evidence and blame all delays on the Crown’s failure to disclose relevant evidence.

Without receiving all the relevant disclosure, argued their defence counsels, they were in no position to prepare and submit their respective Charter motions. [ 11 ] Interestingly, they maintained that delays or postponements brought on by the COVID pandemic should not be deducted from the total delay. Essentially, they argued that that the pandemic only served as a blanket excuse for Crown counsel to ask for a postponement when it wasn’t ready to proceed.

More particularly, late notification of a preliminary DNA report matching the blood found on one of the petitioner’s clothing would preclude its introduction into evidence at the trial. COVID or no COVID, the Crown would have had no choice but to ask for a postponement if it wanted that crucial piece of evidence in support of its case. [ 12 ] In the post-Jordan era, continued the petitioners, every participant in the justice system is expected to be proactive in moving the case along in a timely and efficient manner.

Not unlike the punch-drunk boxer who is saved by the bell, the Crown’s case was saved by the pandemic. However, such an event – exceptional though it may be – should not serve to excuse the Crown’s want of diligence in obtaining and disclosing the DNA report without undue delay. [ 13 ] Despite ongoing issues with disclosure, the petitioners maintain that they made every effort to bring the matter to trial expeditiously. At the first case management conference on September 26, 2019, they chose the fastest pathway to a trial on the merits of the case – a trial before a Judge of the Provincial Court.

At another case management conference held in May 2020, they insisted on a trial date despite not having received all the disclosure relevant to their anticipated Charter challenges . II. Issues [ 14 ] The parties have helpfully agreed on certain admissions regarding the chronology of the proceedings in the present case. They disagree, however, on the manner in which to characterize important swats of time in getting this matter to trial for the purposes of the Jordan application.

A copy of the time or delay charts filed by each of the parties is annexed to the present decision. [ 15 ] Essentially, the issue in the present matter boils down to a determining how certain periods of delay must be classified. If the time was lost on account of the petitioners’ foot-dragging in filing their Charter motions to exclude evidence, it must be deducted from the total delay. What defence counsel are not permitted to do is to engage in illegitimate conduct and then have it count towards the Jordan ceiling [4] .

Deducting delay caused by the defence is aimed at preventing an accused from benefitting from their «own delay- causing action or inaction [5] .» [ 16 ] As mentioned above, there are two swaths of time that are critical to the Jordan application in the present matter: (

i) the delay occasioned the first time the trial was postponed on account of the COVID pandemic (April 2020) and; (ii) the delays caused by the late Charter applications presented by defence counsels the second time this case came to trial (February 2021). With respect to the second period, more particularly, a critical issue is whether the Crown’s failure to respond to the disclosure requested by defence counsels can excuse or explain the last-minute Charter motions. [ 17 ] Smaller periods of time are also subject to debate.

Essentially, the issue will be whether or not the defence waived to invoke the delays occasioned by certain adjournments. [ 18 ] Another issue in the case at bar is whether the delays can be justified by the complexity of the case. At a pre-trial conference, Crown counsel announced that the evidence for the prosecution would include 15 witnesses (seven civilians and eight police officers), videos of the brawl and possibly DNA evidence retrieved from the blood stains on the petitioners’ clothing.

For Crown counsel, what may have started out as a «moderately complex» case became «particularly complex» when defence counsels presented Charter motions alleging a whole slew of rights violations to justify the exclusion of evidence. Under such circumstances, it would be unreasonable to expect the trial to be completed within the presumptive ceiling of 18 months for a case heard before a Judge of the Provincial Court. [ 19 ] Not surprisingly, the petitioners alleged that the case against them was of moderate complexity at best and that all their Charter applications were legitimate.

Tolerance has been factored into the Jordan ceilings for cases that are not «the norm», but rather include some inherent difficulties [6] . III. The history of the proceedings A. Preliminary remarks: not quite the end of micro-counting [ 20 ] For a trial judge, the fastidious part of Jordan motion is going through the entire history of the proceedings and qualifying each and every one of the adjournments. At paragraph 37 in Jordan , the Court held out the hope that trial judges should forego «micro-

counting» under the old Morin framework in favour of a global assessment of the cause of the delays: [37] Finally, the Morin framework is unduly complex. The minute accounting it requires might fairly be considered the bane of every trial judge’s existence. Although Cromwell J. warned in R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, that courts must avoid failing to see the forest for the trees (para. 18), courts and litigants have often done just that. Each day of the proceedings from charge to trial is argued about, accounted for, and explained away.

This micro-counting is inefficient, relies on judicial “guesstimations”, and has been applied in a way that allows for tolerance of ever-increasing delay. [ 21 ] Although expressed in the context of what the defence must do to establish unreasonable delay in cases where the delay falls below the ceiling (which is not the case here), the following passages in Jordan encourages a «bird’s eye» view to a

section 11b) analysis : [91] Determining whether the time the case has taken markedly exceeds what was reasonably required is not a matter of precise calculation. Trial judges should not parse each day or month, as has been the common practice since Morin , to determine whether each step was reasonably required. Instead, trial judges should step back from the minutiae and adopt a bird’s-eye view of the case.

All this said, this determination is a question of fact falling well within the expertise of the trial judge ( Morin , per Sopinka J., at pp. 791-92). […] [111] Third, the new framework reduces, although does not eliminate, the need to engage in complicated micro-counting. While judges will still have to determine defence delay, the inquiry beneath the ceiling into whether the case took markedly longer than it reasonably should have replaces the micro-counting process with a global assessment. This inquiry need only arise if the accused has taken meaningful and sustained steps to expedite matters.

And above the ceiling, a s. 11(

b) analysis is triggered only where the Crown seeks to rely on exceptional circumstances. A framework that is simpler to apply is itself of value: “. . . we must remind ourselves that the best test will be relatively easy to apply; otherwise, stay applications themselves will contribute to the already heavy load on trial judges and compound the problem of delay” ( Morin , per McLachlin J., at p. 810). [ 22 ] A global assessment of delays, however, is difficult to apply when each one of the parties claims to have acted diligently in moving this case to trial and blames the other for the delays.

Inevitably, I will have to sift through most of the proceedings and examine what was said or done (or not done); what was promised, but not delivered; what motions were announced but never produced; what disclosure was requested but (supposedly) not delivered in a timely manner; and what dates were offered but not accepted. [ 23 ] The presumptive ceilings of 18 or 30 months in Jordan have – in a sense – introduced prescription into Canada’s criminal law. Once the ceiling has been breached, it’s the Crown’s burden to establish exceptional circumstances justifying the delay.

Inevitably, defence counsels who claim to be diligent in their efforts to move the case along will want to tally up every adjournment in the trial history to establish a breach in the Jordan ceiling. A delay – no matter how minute – will not be ignored if it could support a

section 11

b) Charter application (drop by drop the river rises). Despite hopes to the contrary, micro-counting will continue to be the bane of a trial judge’s existence. B. The chronology of the proceedings [ 24 ] In the

section that follows, I will review the judicial history of the proceedings. Though best reserved for the «analysis chapter» of the decision, my outline will also include some comments on the delays occasioned by certain adjournments. [ 25 ] The petitioners were arrested on July 14, 2019, following a brawl that occurred outside of a bar. [ 26 ] They appeared detained before the Court on July 15, 2019, and were all released on bail on by July 19, 2019.

At that same date, Me Chevalier for one of the petitioners (Brian James Bremner) put the Crown and the Court on notice that he intended to fast-track his client’s case to trial.

He added that he had already met with his witnesses. [ 27 ] The presiding judge, however, was of the opinion that a special prosecutor should be appointed in order to properly prepare the case for trial and the matter was adjourned to the 16 th of August 2019. [ 28 ] At that last-mentioned date, defence counsels reiterated their intent on fixing a trial date immediately and elected for a trial before a Judge of the Provincial Court – thus establishing the presumptive Jordan ceiling at 18 months.

However, as a special prosecutor had yet to be assigned to the case, no dates were set aside for the trial. [ 29 ] Though Me Chevalier asked that the matter be adjourned to the 16 th of September 2019 (in fact, the first available date for a pro forma hearing), it was fixed to the 26 th day of September 2019 at the request of counsel representing the Crown. [ 30 ] At that last-mentioned date, Judge Paradis presided the preparatory conference in view of fixing this case to trial.

Me Molina, counsel appointed to represent the Crown in this matter, explained that he had gone over the file and that he was ready to set a trial date. [ 31 ] During this conference, the Court addressed the following matters: • Number of witnesses and duration of the trial Crown counsel stated that 15 witnesses would be called by the prosecution, including seven police officers and eight civilians. While the officers would testify in French, most of the civilian witnesses will testify in English.

As to the projected length of the trial, both parties initially agreed that eight days would be enough time to hear all the evidence . • The possibility of videoconference testimony

Five of the victims named in the charge sheet live and work in the United States. To avoid the expense and inconvenience of travelling to Montreal to deliver their testimony, Crown counsel indicated that there will probably be an application pursuant to s. 715.2 of the Criminal Code to have them testify by videoconferencing.

Defence counsels, for their part, indicated that they would not object to videoconference testimony on the condition that there are no technical difficulties with the audio and video feed. • The possibility of introducing DNA evidence at the trial Police seized the bloodstained clothing of all the petitioners. The purpose, of course, was to obtain DNA results that matched with one or more of the alleged victims. At the case management conference of September 26, 2019, Me Molina announced his intention to introduce DNA evidence in support of the Crown’s case (in the event of a positive match).

However, it was still early, and the results were yet to come. • Preliminary motions, if any, to be filed by the defence When asked by the case management Judge if the defence had any preliminary motions to present, Me Vivas announced that she would be filing an application to suppress evidence relating to the seizure of one of the petitioner’s clothing (Shawn Gerard Martell) whilst awaiting medical treatment at a hospital emergency room. No warrant had been obtained to do so.

Also, Me Vivas announced that she will be filing a motion to quash the warrant-backed seizure of the petitioner’s clothing – which was obtained by the lead investigator when the petitioner was brought to the police station following his release from the hospital. She summarily added that the motion would contest the grounds mentioned by the affiant in support of the warrant. The motion, however, was not yet crafted. When asked by the presiding judge about the number of paragraphs in the affidavit, Me Vivas simply responded that she didn’t have her notes.

It should be noted that Me Vivas also represented the petitioners Dylan Shawn Martel and Bailey Chance Reilly. Though their clothes were also seized by the police for the purposes of collecting DNA evidence, no Charter motion was announced on their behalf.

Yet, the ITO in support of the warrant authorizing the seizure of their clothes was in all aspects similar to the one supporting the warrant issued for the seizure of Shawn Gerard Martell’s clothes • Summing it all up for the trial For the presiding judge, the possible introduction of DNA evidence into the Crown’s case meant that ten days (instead of eight days as initially projected by the parties) would be needed in order to complete the trial. Dates were offered in December 2019 but declined due to the unavailability of defence counsels.

In the end, the trial was set for the 14 th to the 24 th of April 2020 and the 6 th and 7 th of May, 2020. As for the Charter motion announced on behalf of the lone petitioner (Shawn Gerard Martell) it was set for March 23, 2020, and scheduled for one whole day. Furthermore, Judge Paradis ordered that the motion be produced in the Court record before February 23, 2020 [7] . Unfortunately, the said date came and went, and no motion was ever filed by Me Vivas on behalf of her client. Even after the first scheduled trial dates were scrubbed on account of the COVID pandemic, no motion was to be had.

In fact, the want of diligence in producing and filing a motion in timely manner is a constant theme in the present matter. When the case was remanded a second time to trial in February of 2021, defence was given a December 20, 2020, deadline to produce a Charter motion first announced in September 2019. Yet again, the due date passed with no motion being produced. Dates reserved for the hearing of the motion on the 21 st and 22 nd of January 2021 came and went and still not a motion was produced or served.

When the motion was finally ready, it inevitably exhausted the time that should have been reserved for the trial evidence. [ 32 ] But I digress. Later in this decision, I’ll come back to the subject of the late Charter motions filed by the defence and the manner in their presentation (

i) disrupted scheduled hearings and (ii) added to the total delays in getting this case to trial. (Commentary /Discussion on the proceedings thus far) [ 33 ] From the outset, Me Chevalier made it clear that he wanted to fast-track this case to trial.

To that effect, he elected to proceed before a Provincial Court Judge - the most direct route to trial. [ 34 ] Also, we note that he wasn’t going to quibble over the possibility of having witnesses testify by videoconference – so long as their testimony was not disrupted or made difficult by technical glitches. [ 35 ] As for Me Vivas, a rehearing of the proceedings of the case management conference held on September 26, 2019, suggests that she was following Me Chevalier’s lead on the course for a speedy trial. However, I get the impression that she was ill prepared for matters relating to her Charter motion.

I note, for instance, that she had to be prodded along by Me Chevalier when announcing that she would be contesting the warrant and warrantless seizure of Shawn Gerard Martell’s clothes. Aside from some generic comments, no details were given regarding the nature of the proposed challenge. Questioned by the presiding judge as to the length of the affidavit in support of the warrant, she could not answer – all she could say was that she didn’t have her notes.

Yet, the affidavit contained but four paragraphs – surely, a detail not too difficult to retain [8] . [ 36 ] Finally, from the case management conference, I note that defence counsels were put on notice about the Crown’s intention to

introduce DNA evidence at trial (assuming, of course, that the bloodstains lifted from the petitioners' clothing matched up with one or more of the complainants). [ 37 ] I mention this only because at that first case management conference, Me Chevalier never raised the issue of a s. 8 Charter challenge to suppress any evidence that may be had from the bloodstains found on his client’s clothing (Brian James Bremner).

Eventually, he would partner up with new counsel (Me Bérubé-Bouchard) for the co-petitioners and present an enhanced Charter petition which raised a large number of rights violations for the purpose of suppressing the DNA evidence. As mentioned above, the enhanced Charter application was not only late in coming, but also took up precious time reserved for trial evidence. [ 38 ] From his explanations at the Jordan hearing (March 14, 2022), the late introduction of a Charter motion on behalf of his client was due to the late disclosure of the supplemental evidence and not for want of diligence on his part.

When a trial date was set at the case management conference (September 26, 2019), the evidence against his client consisted of the testimony of a single eyewitness. Defence strategy, therefore, was to pick apart the credibility or reliability of that lone witness. However, all that changed when Crown counsel sent him an e-mail (rather late in the proceedings) stating that the DNA from one of the complainants matched up with the bloodstain samples lifted from his client’s clothing.

As he explained, defence strategy now had to focuses «on getting rid of the DNA. » [ 39 ] Not to be flippant, but I gather from his explanations that he was crossing his fingers when the trial date was set in the hopes that (

i) the DNA results would be negative or (ii) the results would not come in on time for the trial. [ 40 ] This being said, contesting the possible introduction of DNA evidence had to have been part of the strategy of Me Vivas when she timidly announced her intent to file a Charter motion at the first case management conference.

Why else would she want the clothing seized from her client (Shawn Gerard Martell) excluded from the Crown’s evidence? (Back to the history of the proceedings) [ 41 ] On the 4 th day of March 2020, Me Molina for the Crown disclosed by e-mail a preliminary DNA report linking the blood sample lifted from Brian James Bremner’s clothing to one of the complainants.

Crown counsel took care to note that the «preliminary report» did not constitute an «expert’s report» and that the «official results will be transmitted in a more complete report. [9] » [ 42 ] On March 18, 2020, Crown counsel addresses an e-mail to Judge Morin [10] , Me Chevalier and Me Vivas [11] . The contents of the letter are best understood if one recalls that the whole country was then dealing with the first throes of the COVID pandemic and that most of the judicial proceedings were temporarily suspended.

In essence, Crown counsel relays the following information: • He (Crown counsel) is in isolation following his return from a vacation in Mexico (at the time, the sanitary measures imposed by the authorities to combat contagion from COVID 19 required a 14-day period of self-isolation for residents or visitors coming into Canada from abroad). • He expresses concern with respect to the trial proceeding as projected, given that he will be in quarantine and away from the office till March 30, 2020, at the very least. • All the complainants reside in the United States.

Given that the borders are sealed on account of the government imposed sanitary measures to control the spread of COVID, it will be impossible for the said complainants to testify in a Montreal court room. • It will be impossible for him (Crown counsel) to show up at the courthouse to request that the case be postponed. • While waiting for the « situation to stabilize, » it is in the interest of justice to postpone the case. [ 43 ] On March 19, 2020, Me Chevalier sent an e-mail to Judge Morin wherein he expresses doubts about any progress that could be made at an upcoming pre-trial conference [12] .

Hoping that the circumstances might change, he suggested, instead, that it be rescheduled after March 30, 2020. [ 44 ] Next, the e-mail alludes to the possibility of videoconference testimony in order to move the case along: […] j’ignore si la poursuite peut procéder, pour le procès, avec ses témoins via vidéoconférence ou si c’est même possible de le faire [13] . [ 45 ] Finally, he announces in no uncertain terms that the introduction of the DNA evidence will be vigorously contested if it is not filed within the delays set out at s. 657.3 (3) (

a) Cr.C [14] . De plus, j’ignore si la poursuite pourra divulguer, avant le 14 avril, le rapport d’analyse génétique. Chose certaine, les délais de 657.3 ne seront pas respectés et une requête Bjelland sera présentée si une telle preuve nous est divulguée d’ici là [15] . [ 46 ] On March 20, 2020, Me Molina for the Crown sent an e-mail [16] to defence counsels and case management judge apprising them of the following: • Given his situation (mandatory period of quarantine), he will not be present in court on the 23 rd of March, 2020.

Instead, he will give instructions to one of his colleagues at the Crown’s office to postpone the case (as previously agreed) to the 30 th of March, 2020. • With respect to Me Chevalier’s query regarding the date in which the official DNA report will be filed, he replies that it will not be ready before the week of March 30 th – acknowledging, thereby, that he won’t be able to respect the delays set out at s. 657.3 Cr.C .

• He ends the e-mail by stating that he will not be able to proceed to trial on the 14 th of April 2020 (the date set for the start of the trial) and that he will be asking for a postponement on the 30 th of March, 2020: Je réitère donc qu’il est évident que je ne serai pas en mesure de procéder le 14 avril 2020. Je ferai donc une demande de remise le 30 mars 2020. [Emphasis added] [ 47 ] No audio recording could be found for the date of March 23, 2020, initially reserved for the hearing of the Charter motion.

One can safely presume that it was administratively cancelled on account of the COVID pandemic. [ 48 ] On March 30, 2020, the case was put on the docket and the trial was postponed because of the ongoing pandemic and its impact on the trial dates already fixed (emphasis added). [ 49 ] Interestingly, both parties forwarded e-mails to the case management judge that very same day in which they summed up their respective positions on the grounds for the postponement [17] . In the Crown’s

summary, the COVID pandemic left no other option but to adjourn the case: • Logistical issues The trial requires the presence of six witnesses who live in the United States. Given the present situation (closed borders) it will be impossible for them to travel to Canada. Though Crown counsel had first advanced the possibility of the witnesses testifying by videoconference, he was now of the view that their presence in court was essential. • Better use of police resources Seven Montreal police officers will also be called to testify.

However, given the present state of affairs in the city (COVID pandemic), their services would be put to better use on the streets. [ 50 ] Covering all bases, Me Molina for the Crown took care to mention that if the case was postponed, it was on account of the COVID pandemic : Suite à ma présence devant le tribunal ce matin, vous me demandiez madame la juge d’indiquer que s’il y avait remise elle serait au motif du Covid 19 [ Emphasis added ] [ 51 ] Not without importance, the e-mail also mentions that the expert’s report regarding DNA evidence was still not ready.

Counsel added, however, that an expert from the forensics lab will be called to testify in this matter. Je tiens à préciser que la poursuite n’a toujours pas reçu le rapport d’expertise du LSJML, concernant l’analyse d’ADN. Un expert du LSJML sera appelé à témoigner dans ce dossier. [ 52 ] As for Me Chevalier, his position on the postponement can be summed up as «acquiescence to the inevitable»: Je ne peux qu’acquiescer devant l’inévitable.

Je ne crois pas que la situation sanitaire se résorbera d’ici la date planifiée du début du procès. [ 53 ] He acknowledged that it would be unwise (or even illegal) for his client(

s) to travel to Montreal for the trial (they all resided in Nova Scotia). [ 54 ] He even agreed with Crown counsel’s position that the seven police officers called to testify in this matter would be put to better use on the streets of the city. [ 55 ] Given the circumstances, he understands that it would be impossible to proceed: Donc, dans la situation, nous comprenons qu’il est impossible de procéder . Si le Tribunal décidait le contraire, nous serions toutefois disponibles. [Emphasis added]

(Commentary / discussion) [ 56 ] At the Jordan hearing, defence counsels argued that the COVID pandemic served as a blanket excuse to justify the Crown’s want of readiness to proceed with the trial. More particularly, it failed to obtain the DNA evidence in a timely manner for it to be produced in evidence for the trial . It would be unfair, therefore, to reward their inaction by subtracting from the «total delay» the adjournment occasioned by the COVID pandemic. [ 57 ] To a certain degree, I agree with defence counsels that the Crown’s case suddenly improved with the unexpected advent of the COVID pandemic.

With a postponement in hand, it could now buttress its case with DNA evidence. [ 58 ] For the reasons that follow, however, I disagree with defence counsels’ position that the COVID delays should not be deducted from the total delays: - No evidence that Crown would not have proceeded if not for the COVID pandemic [ 59 ] At the case management conference held on September 26, 2019, Crown announced that it was ready to proceed to trial even though it didn’t have the DNA results. At the time, Crown’s evidence consisted of eyewitness testimony and video footage of a brawl.

Also, there was material evidence to corroborate the petitioners’ involvement in the fight – their bloodstained clothing. [ 60 ] Of course, the Crown’s case against the petitioners would be better with the introduction of DNA evidence, but the Crown could still have proceeded without it. - It’s all academic: ready or not, the case would have been cancelled anyway [ 61 ] In the end the Crown’s readiness or want of readiness for a trial is a moot point. The fact is that the COVID pandemic disrupted most of the judicial proceedings at the Montreal Courthouse.

Ready or not, there would be no trial. [ 62 ] From the exchange of e-mails between the parties, it is plainly obvious that the COVID pandemic, along with the sanitary measures imposed by the authorities to control the spread of contagion, was the cause for the adjournment. Me Chevalier, himself, in his e-mail of March 20, 2020, acknowledges that it would be «impossible to proceed» given the circumstances. He even noted that it would be «unwise» and perhaps «illegal» for his client(

s) to travel to Montreal for the trial. Hypothetically, if the trial was to proceed, I imagine that he would have been in the situation to ask for a postponement on account of a travel restriction making it impossible for his client(

s) to attend. [ 63 ] In the end, the court record shows that the trial was postponed on account of the COVID pandemic and nothing else . Only at the Jordan hearing (March 14, 2022), did the defence take issue with the manner in which the pandemic served to remedy the Crown’s supposed want of readiness. [ 64 ] The Crown may have caught a break with the postponement occasioned by the COVID pandemic. But such a break changes nothing to the fact that the cause of the postponement – recognized by all the parties at the time it was granted by the Court – was the pandemic.

Understandably, the petitioners were hoping that the DNA evidence would never be introduced into evidence. But by the force of circumstances, the Crown can now bolster its case by presenting the said evidence when a new trial date is set. (Back to our timeline) [ 65 ] On the 30 th of March 2020, the case was fixed for a pro forma hearing to May 6, 2020.

Due to the ongoing pandemic, however, the matter was postponed again to the 27 th of May, 2020. [ 66 ] At that last date, Me Molina for the Crown mentioned that he was ready to fix for trial, but Me Chevalier asked for a postponement in order to verify his availabilities for the following months. Me Molina did not object and the matter was fixed for June 18, 2020. [ 67 ] Meanwhile, on May 29, 2020, Me Chevalier sent an e-mail to Crown counsel requesting additional disclosure [18] . Details regarding the nature of the requested disclosure were included in an eight-page attachment to the e-mail.

At the Jordan hearing (March 14, 2022), counsel explained that the request for supplemental disclosure was necessary in order to mount a Charter challenge to exclude the DNA evidence. He pointed out that the original case against his client was predicated on challenging the reliability of one eyewitness. Now, with the possible introduction of DNA evidence to buttress the Crown’s case, defence strategy had to focus on suppressing said evidence. [ 68 ] The supplementary disclosure requested could only be described as extensive, varied and detailed. All in all, it covered 32 items (and sub-items) for disclosure.

A partial list of the items requested includes : • A McNeil inquiry regarding 12 Montreal police officers (they are named in the disclosure request); • A copy of all the recorded conversations or communications of the police officers involved in the case - including communications between the officers and central control ( la centrale ); • Criminal record of three civilian witnesses; • The updated notes of 13 officers (they are specifically named in the disclosure request); • The updated notes of another series of 11 officers (they are specifically named in the disclosure request;

• Queries as to whether or not three officers had any notes (they are named in the disclosure request); • Queries as to whether or not seven officers produced any notes relating to the events (they are only designated by their respectivebadge numbers) • A query as to whether or not two officers (Michon and Giguère) completed and filed a «use of force» report; • Documentation relevant to establishing the «chain of custody» of the petitioners’ clothes that were seized by the police; • Photogrpahs taken near the scene of the brawl by Officer Faubert; • What results were yielded by the verification of the cameras at the New City Gas bar by Officer Thidodeau; • A query as to where the photographs displaying injuries to the victims come from; • A request to obtain all documents (including e-mails) relating to the obtention of said photographs (injuries to the victims); • A request to obtain a copy of an e-mail sent by a civilian witness (Mr.

Péladeau) to SD Bach[19]; • A request to obtain a copy of the text sent by the said witness to S.D. Bach, including the envelope data; • A copy of the Whatsapp messages between S.D. Bach and two officers from the detachment 20-3 (Jacob and Grégoire), includingthe envelope data. [69] The requested disclosure was only forwarded to defence counsels on October 30, 2020. As mentioned earlier, defence counselswill point to the late disclosure of the supplemental evidence, rather than inaction on their part, as the reason for the late filing of theirCharter motions.

Consequently, if anyone was to blame for the blocks of time spent (or lost) on hearing the Charter motions instead oftrial evidence (scheduled for two weeks in February 2022), it was the Crown. (More commentary) [70] Accepting Me Chevalier’s explanations that the initial defence strategy was limited to making short shrift of testimony from asingle eye witness, I still find it difficult to understand why he wouldn’t have asked for Charter-related disclosure at an earlier date.After all, the Crown did announce at the very first case management conference its intent to produce DNA evidence – assuming, ofcourse, that the genetic material lifted from the petitioners’ clothing matched up with one or more of the complainants.

I add that MeVivas, representing three of the petitioners, must have considered that possibility when she announced a Charter motion challenging theseizure of the clothes. [71] The decision of the Court in Jordan has underscored the importance of a proactive approach by all the participants in the criminaljustice system to avoid delay[20].

It is not enough to merely sit back and later pick up the pieces when the delay has transpired[21].What is required is proactive, preventative problem solving.[22]» [72] If I accept Me Chevalier’s explanations, then I must assume that he was sitting back and crossing his fingers when a trial datewas set at the first case management conference, hoping that DNA evidence would not be produced on time or that it would provenegative. This approach can hardly be qualified as «proactive, preventative problem solving.» Where counsel anticipate issues arising attrial, they have an obligation to prepare for those issues.

With the real possibility of DNA evidence being presented at trial, defencecounsel should have requested supplemental disclosure at a much earlier date. Waiting till the results came in, would only delay theCrown’s ability to promptly respond to such a request – all the more so when one considers the extensive and detailed nature of thesupplemental disclosure demand. [73] Next, I note that several items in the supplementary disclosure request are trial-related materials and of limited use for anyCharter challenge (i.e. requests or queries regarding additional photographs and videos of the brawl).

Assuming that defence counsel’sinitial strategy was limited to challenging eyewitness testimony linking his client to the brawl, the additional disclosure requests shouldhave come sooner. While the Crown and the police have obligations to disclose, the defence has an obligation to diligently pursuedisclosure. As explained by Cory J. in R. v. Dixon, (SCC), [1998] 1 SCR 244: [37] In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must betaken into account.

A lack of due diligence is a significant factor in determining whether the Crown’s non-disclosure affected thefairness of the trial process. In Stinchcombe, supra, at p. 341, defence counsel’s duty to be duly diligent was described in this way: Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply withits duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to theaccused if possible and thus avoid a new trial. See Caccamo v. The Queen, (SCC), [1976] 1 S.C.R. 786.

Failure to doso by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered. The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seekingand pursuing Crown disclosure. The very nature of the disclosure process makes it prone to human error and vulnerable to attack. Asofficers of the court, defence counsel have an obligation to pursue disclosure diligently.

When counsel becomes or ought to becomeaware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure. This was aptly stated by the British Columbia Court of Appeal in R. v.Bramwell (1996), (BC CA), 106 C.C.C. (3d) 365 (aff’d (SCC), [1996] 3 S.C.R. 1126), at p. 374:

. . . the disclosure process is one which engages both the Crown and the defence. It is not one in which defence counsel has no role to play except as passive receiver of information. The goal of the disclosure process is to ensure that the accused is not denied a fair trial. To that end, Crown counsel must disclose everything in its possession which is not clearly irrelevant to the defence, but the defence must also play its part by diligently pursuing disclosure from Crown counsel in a timely manner.

Further, where, as here, defence counsel makes a tactical decision not to pursue disclosure of certain documents, the court will generally be unsympathetic to a plea that full disclosure of those documents was not made. [Emphasis added] [ 74 ] I add that at the Jordan hearing on March 14, 2022, no evidence was brought to bear as to why defence counsels could not craft their anticipated Charter motions without first obtaining the supplementary disclosure.

Could the requested disclosure have the potential to reveal a treasure trove of information without which a coherent Charter motion could not be contemplated, let alone crafted? Or, was the request no more than a shot in the dark, where one is merely hoping to find a nugget of evidence that can corroborate Charter arguments that should have been contemplated, drafted and filed in the Court record a while ago?

For that matter, there is little mention of what evidence was transmitted to defence counsels pursuant to their supplemental disclosure request, let alone the absolute necessity of the said evidence for presenting a Charter motion in a timely manner. [ 75 ] At the Jordan hearing, Crown flatly stated that the defence already had in its possession all the disclosure necessary to prepare the anticipated Charter motions.

At best, the supplementary disclosure could only bolster some of the alleged rights violations in said motions. [ 76 ] If defence counsels already had sufficient disclosure to prepare a coherent Charter motion, the delay in presenting it cannot be excused.

While the defence certainly requires time to review the prosecution’s evidence, it cannot hold out for every last shred of disclosure before moving the case forward [23] . (Back to the chronology) [ 77 ] On June 18, 2020, Me Vivas informed the Court that Me Chevalier was held up in a jury case and asked for another postponement, which was not contested by the Crown. [ 78 ] On July 27, 2020, the official DNA report was finally disclosed to the parties, even though it was signed and dated on July 2, 2020. [ 79 ] On July 28, the parties were ready to fix the case for trial: two weeks in February 2021 (the week of the eighth and the week of the 22 nd ) were set aside for the trial and two days were reserved for Charter motions on the 21 st and the 22 nd of January 2021. [ 80 ] Although not mentioned in the Court records, the due date for the filing of the Charter motion was December 20, 2021.

However, no Charter motion was produced at that date or served at the Crown’s office. [ 81 ] On January 12, 2021, a preparatory conference was held before me in order to properly ascertain the situation relating to the upcoming trial. Of particular concern, the Charter motion first announced by Me Vivas back in September 2019 had yet to be filed. [ 82 ] At the said hearing, I was informed that Me Vivas was no longer representing any of the petitioners, and that she was going to be replaced by Me Bérubé-Bouchard.

Concerning the Charter motion, Me Chevalier informed the Court that, for reasons beyond his control, he had been unable to prepare it on time and that it was not ready. [ 83 ] Me Molina, for his part, stated that without any motion in the works he would not assign any witnesses and would not be ready to begin the hearing set for January 21, 2021. [ 84 ] The session concluded with my asking the defence to prepare the proposed Charte r motion forthwith and for the parties to reconvene on the 19 th day of January 2021. [ 85 ] Unfortunately, there is no recording of what transpired on the last-mentioned date.

That being said, it is not contested that the parties agreed to cancel the trial dates reserved for the Charter motion (the 21 st and the 22 nd of January 2021). [ 86 ] On that same day, Me Chevalier sent a draft copy of his Charter motion (on behalf of Brian James Bremner ) to Crown counsel and to my attention. [ 87 ] On January 25, 2021, the final version of the Charter motion was served to the Crown and filed in the Court record.

It is of note that this motion was 39 pages long, excluding annexes, and covered numerous alleged violations, including arbitrary detention and arrest, excessive use of force, unreasonable search and seizure of clothing and the right to counsel.

In fact, from the reading of the Charter motion and the alleged rights violations contained therein, the police are depicted as a bunch of incompetent brutes with little regard for the rights of the petitioners. [ 88 ] For his part, Me Bérubé-Bouchard (taking over from Me Vivas) filed a 48-page Charter motion to exclude evidence on behalf of his client, Shawn Gerard Martell, an eight-page motion to exclude evidence on behalf of Bailey Chance Reilly and an eight-page motion to exclude evidence on behalf of Dylan Shawn Martell.

Not unlike the motion filed by Me Chevalier for petitioner Brian James Bremner, the Charter motion filed by Me Bérubé-Bouchard for his clients was extensive and detailed – the police fumbled the ball from

beginning to end. [ 89 ] On account of the delays in producing the Charter motions (as well as the sheer breadth of the rights violations alleged therein), the first week of trial (slated for February 8, 2021) had to be cancelled. For one thing, Crown counsel needed time to prepare his response to the multifaceted Charter challenge mounted by defence counsels. For another thing, counsel had to reschedule his list of witnesses in order to proceed with the evidence on the Charter challenge rather than present witnesses originally scheduled for trial evidence.

Of note, counsel had very little time to make the necessary arrangements to accommodate the evidence defence counsels wanted to present in support of their Charter motions. [ 90 ] On February 8, 2021, the case was postponed to the 22 nd of February 2021. One will remember that the week of the 22 nd of February was originally set to accommodate the second week of trial evidence. [ 91 ] During the said week, many police officers were called to the stand. Unfortunately, the examination and cross-examination of all the officers took much more time than expected.

Ultimately, two additional dates were required in order to complete the hearing on the Charter motions – July 29 and July 30, 2021. [ 92 ] At the end of the hearing (July 30, 2021), dates were fixed for trial evidence – the week of the 14 th of March and the week of the 21 st of March 2022. Fixing said dates was a sort of preventive measure to avoid further delays. Given the number of rights violations alleged by the petitioners – as well as the scope of the evidence in support of their Charter motions - crafting a decision on my part would time some time.

A long deliberation would inevitably add to the total delays. [ 93 ] My decision on the Charter motions was originally set for October 8, 2021, but was postponed to October 27, 2021. It should be noted, however, that the delay in rendering the decision had no consequence on the total delays as dates for trial evidence had already been set on July 30, 2021. [ 94 ] In early February of 2022, defence counsels advised the undersigned of their intent to file a Jordan motion on behalf of their clients.

I must say that the announcement came as a bit of a surprise given that no objection was taken to the date when it was set back on July 30, 2021, and that issues regarding trial delays were announced but a mere month before a trial scheduled to last two weeks. [ 95 ] To make matters worse, counsels advised the Court that their busy schedules would not allow for a hearing on the Jordan motion before the scheduled trial dates. It’s «Groundhog Day» day all over again - dates normally reserved for trial evidence will now have to be set aside for a hearing on an eleventh-hour Charter motion announced by the defence.

Inevitably, this will only lead to more delays in bringing this trial to an end. [ 96 ] On the 14 th of February, Me Bérubé-Bouchard – transmitted to Crown counsel and myself a copy of a Jordan motion presented on behalf of his clients. Me Chevalier, for his part, joined in the Jordan motion announced by his colleague. (Additional information given at the Jordan hearing to explain the delays) [ 97 ] Defence counsels assumed no blame for any of the delays incurred by the late filing of their Charter applications.

As discussed above, one of the reasons was the failure of Crown counsel to follow through on the supplemental disclosure request of Me Chevalier. From the evidence we know that it was only received by counsel on October 30, 2020 – some five months after the original request made was made. [ 98 ] Difficulties in crafting a Charter motion were compounded by defence counsel’s busy schedule. At the Jordan hearing, Me Chevalier explained that he was in the middle of a long jury trial when he received the additional disclosure.

Under such circumstances, he couldn’t be expected to absorb the additional disclosure in time in order to file a Charter motion before the due date. [ 99 ] Adding to Me Chevalier’s difficulties, was his wife’s surgery at the end of December 2020. For one week, he had to attend to all matters on the home front – which included taking care of his wife and their child. IV. Discussion A. First some preliminary remarks on the legal principles that will guide this decision 1. Brief comments on the right to a speedy trial [ 100 ] The right to a speedy trial implicates interests on all sides of a criminal trial.

Both the prosecution and criminal defendants have an interest in presenting evidence while still fresh in the witnesses’ memories. One may argue, however, that the strength of a witnesses’ ability to recollect facts weighs more heavily on the prosecution because it bears the burden of proof. For the defendant who remains incarcerated after his arrest, delay in getting to trial has an evident impact on his liberty, his employment and even his ability to properly mount a defence.

And even if the accused secures bail, speedy trials are warranted in order to minimize the anxiety, concern and stigma of exposure to a criminal proceeding. A lengthy delay should not be the price to pay for an accused to assert his innocence. [ 101 ] Society also has an interest in the quick resolution of trials beyond the particular s. 11

b) interests of an accused. In Jordan , the Court recognizes that delays can shake the public’s trust in the administration of justice : [25] […] timely trials are important to maintaining overall public confidence in the administration of justice. As McLachlin J. (as she then was) put it in Morin , “delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair

administration of justice” (p. 810). Crime is of serious concern to all members of the community. Unreasonable delay leaves the innocent in limbo and the guilty unpunished, thereby offending the community’s sense of justice (see Askov , at p. 1220). Failure “to deal fairly, quickly and efficiently with criminal trials inevitably leads to the community’s frustration with the judicial system and eventually to a feeling of contempt for court procedures” (p. 1221). 2.

The times they are a-changin[g]’ [24] [ 102 ] Though timely justice is in the interest of all, the Court ’s majority in Jordan recognized that the existing Morin framework had allowed a «culture of complacency» to develop in relation to delay: [29] While this Court has always recognized the importance of the right to a trial within a reasonable time, in our view, developments since Morin demonstrate that the system has lost its way.

The framework set out in Morin has given rise to both doctrinal and practical problems, contributing to a culture of delay and complacency towards it. [ 103 ] In particular, the Morin framework did not encourage the players to take preventive measures to address inefficient practices : [41] […] Delay is condemned or rationalized at the back end. As a result, participants in the justice system — police, Crown counsel, defence counsel, courts, provincial legislatures, and Parliament — are not encouraged to take preventative measures to address inefficient practices and resourcing problems.

Some courts, with the cooperation of counsel, have undertaken commendable efforts to change courtroom culture, maximize efficiency, and minimize delay, thereby showing that it is possible to do better. Some legislative changes and government initiatives have also been taken. In many cases, however, much remains to be done. [ 104 ] To counter the culture of complacency, which is fed by an increasing tolerance for delays, the Jordan majority established a new framework to be applied where a breach of s. 11(

b) is alleged. At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable [25] .

The presumptive ceiling is set at 18 months for cases going to trial in the provincial court, and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) [26] . [50] A presumptive ceiling is required in order to give meaningfu l direction to the state on its constitutional obligations and to those who play an important role in ensuring that the trial concludes within a reasonable time: court administration, the police, Crown prosecutors, accused persons and their counsel, and judges.

It is also intended to provide some assurance to accused persons, to victims and their families, to witnesses, and to the public that s. 11(

b) is not a hollow promise. [Emphasis added] [ 105 ] From this perspective, Jordan is a necessary tonic designed to address the ills of a system that is desperately searching for a cure [27] .

The cure requires more than judicial platitudes and Jordan offers practical, realistic assistance [28] . [ 106 ] At paras. 137 to 139, the Court stressed that a change of culture required the active participation of all the parties, including the courts: [137] Real change will require the efforts and coordination of all participants in the criminal justice system. [138] For Crown counsel, this means making reasonable and responsible decisions regarding whom to prosecute and for what, delivering on their disclosure obligations promptly with the cooperation of police, creating plans for complex prosecutions, and using court time efficiently.

It may also require enhanced Crown discretion for resolving individual cases. For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance. [139] For the courts, this means implementing more efficient procedures, including scheduling practices.

Trial courts may wish to review their case management regimes to ensure that they provide the tools for parties to collaborate and conduct cases efficiently. Trial judges should make reasonable efforts to control and manage the conduct of trials. Appellate courts must support these efforts by affording deference to case management choices made by courts below. All courts, including this Court , must be mindful of the impact of their decisions on the conduct of trials. [ 107 ] The Court ’s subsequent decision in Cody confirmed its resolve at ending the «culture of complacency.»

At the very first paragraph in its decision, it stated that the delays in Cody —some five years from the laying of the charge to the actual trial—illustrated the failings of the pre- Jordan culture.

After noting that the Crown, the defence and the system contributed to the delay, it stressed (like it did in Jordan ), that «every actor in the justice system has a responsibility to ensure that criminal proceedings are carried out in a manner that is consistent with an accused person’s right to a trial within a reasonable time [29] .» [ 108 ] As was the case in Jordan, the Court reiterated the role trial judges play in curtailing unnecessary delay and in changing courtroom culture [30] .

In scheduling, for example, a court may deny an adjournment request on the basis that it would result in unacceptably long delay, even where it would be deductible as defence delay [31] . In addition, trial judges should use their case management powers to minimize delay. For example, before permitting an application to proceed, a trial judge should consider whether it has a reasonable prospect of success [32] . Also, trial judges should be active in suggesting ways to improve efficiency in the conduct of legitimate applications and motions, such as proceeding on a documentary record alone.

This responsibility is shared with counsel [33] . 3. Obligations of the Crown [ 109 ] As for the Crown, it has an obligation to bring an accused to trial and to ensure that the trial proceedings, once engaged, are not unduly delayed [34] . This obligation imposes upon the state the obligation to provide the courts with the necessary resources so to ensure that a person’s 11(

b) rights are not infringed. As Justice Cory explained in the seminal case of R . v. Askov :

It must be remembered that it is the duty of the Crown to bring the accused to trial. It is the Crown which is responsible for the provision of facilities and staff to see that accused persons are tried in a reasonable time [35] . [ 110 ] In Jordan , the Court provided for exceptional circumstances to justify delays beyond the presumptive ceiling of 18 months or 30 months. Exceptional circumstances were described as those that «lie outside the Crown’s control in the sense that (1) they are reasonably unforeseen or reasonably unavoidable, and

(2) Crown counsel cannot reasonably remedy the delays emanating from those circumstances once they arise [36] . » [ 111 ] The Court , however, stated that it was not enough for the Crown to point out past difficulties (i.e. a discrete event or the particular complexities of the case) to justify the delay, it also had to take steps to mitigate the delay; after all, the responsibility of taking the accused to trial falls upon the Crown. As the Court explained at para. 70: It is not enough for the Crown, once the ceiling is breached, to point to a past difficulty.

It must also show that it took reasonable available steps to avoid and address the problem before the delay exceeded the ceiling. This might include prompt resort to case management processes to seek the assistance of the court, or seeking assistance from the defence to streamline evidence or issues for trial or to coordinate pre-trial applications, or resorting to any other appropriate procedural means.

The Crown, we emphasize, is not required to show that the steps it took were ultimately successful — rather, just that it took reasonable steps in an attempt to avoid the delay. [ 112 ] Further, in matters where the Crown initiates a complex prosecution, it must be able to show that it had a «concrete plan to minimize the delays occasioned by its complexity [37] . » In the absence of such a plan, the circumstances having occasioned the delays will not be deemed exceptional as they were not beyond the control of the Crown [38] . 4.

Obligations of the defence. [ 113 ] Although the Jordan framework places the onus on the Crown to rebut presumptive delay, defence counsel cannot simply remain passive but rather has a duty to minimize and avoid causing delays [39] . For defence counsel, this means actively advancing their clients’ right to a trial within a reasonable time, collaborating with Crown counsel when appropriate and, like Crown counsel, using court time efficiently. Both parties should focus on making reasonable admissions, streamlining the evidence, and anticipating issues that need to be resolved in advance [40] . B.

Applying the Key components of the Jordan framework (doing the math) [ 114 ] Though the defence counsels' Charter petitions were not without merit, the manner in which they presented them attests to a want of concern – not to say indifference - toward delay. A «global approach» to the analysis of delay in the present matter would certainly make my decision a lot easier.

To this effect, one will recall the guidance offered by the majority of the Jordan court to trial judges on the matter of delays: «Courts must avoid failing to see the forest for the trees [41] . » [ 115 ] However, «stepping back» and adopting a «bird’s-eye view » of delays, has to contend with the fact that the Jordan framework largely consists of a mechanistic or formulaic assessment to delay – an 18-month ceiling for cases tried in a Provincial court or 30 months for cases tried at the Superior court.

The Jordan formula then sets out periods of delays that may be deducted from the total delay to determine whether or not the «net delay» breaches the presumptive ceiling. Inevitably, the Jordan framework requires that I characterize certain periods of delays (Crown delay, defence delay or discrete event) and tally up the numbers in each column to determine if the ceiling has been breached. I’ll even have to do some micro-counting, «the bane of every trial judge’s existence. » Damnit Jim, I’m a judge, not an accountant! [ 116 ] In the following section, I will (

i) briefly review the steps set out in Jordan for calculating delays and (ii) parse out the blocks of delays attributable to each party in order to calculate the «net delay». [ 117 ] First step : Calculate the “Total Delay” which is the time from when the charge was laid to the actual or anticipated end of the trial [42] . In the present case the total delay is of 984 days or 32 months and 10 days (July 15, 2019, to March 25, 2022) [43] . [ 118 ] Second step : Deduct from the «total delay» the delay(

s) caused by the defence. These delays include periods of time waived by defence (i.e., adjournments) and/or time lost on account of defence conduct [44] . [ 119 ] Of course, deducting defence delay is predicated on the premise that an accused should not be allowed to complain about periods of time for which he or she has sought a postponement or delayed the prosecution on account of his or her conduct.

Where accused persons benefit from their own delay-causing conduct, such a result «operates to the detriment of the public and the system of justice as a whole [45] .» [ 120 ] At paragraph 63 in Jordan, the Court elaborated on defence conduct resulting in delays: The second component of defence delay is delay caused solely by the conduct of the defence. This kind of defence delay comprises “those situations where the accused’s acts either directly caused the delay . . . or the acts of the accused are shown to be a deliberate and calculated tactic employed to delay the trial” ( Askov , at pp. 1227-28).

Deliberate and calculated defence tactics aimed at causing delay, which include frivolous applications and requests, are the most straightforward examples of defence delay. Trial judges should generally dismiss such applications and requests the moment it becomes apparent they are frivolous. [ 121 ] Further, at paragraph 65, the Court explained that actions legitimately taken to respond to the charges fall outside delays attributable to the defence and are therefore not deducted: To be clear, defence actions legitimately taken to respond to the charges fall outside the ambit of defence delay. For example, the

defence must be allowed preparation time, even where the court and the Crown are ready to proceed. In addition, defence applicationand requests that are not frivolous will also generally not count against the defence. We have already accounted for proceduralrequirements in setting the ceiling. And such a deduction would run contrary to the accused's right to make a full answer and defence. While this is by no means an exact science, first instance judges are uniquely positioned to gauge the legitimacy of defence actions. [122] In Cody, the Court elaborated on delays attributable to defence conduct.

More particularly, it explained that both substance andprocedure must be considered in determining whether a defence action is legitimate. Thus, the decision to take an action, as well as themanner in which it is taken, may be subject to scrutiny : [32] Defence conduct encompasses both substance and procedure — the decision to take a step, as well as the manner in which it isconducted, may attract scrutiny. To determine whether defence action is legitimately taken to respond to the charges, the circumstancessurrounding the action or conduct may therefore be considered.

The overall number, strength, importance, proximity tothe Jordan ceilings, compliance with any notice or filing requirements and timeliness of defence applications may be relevantconsiderations. Irrespective of its merit, a defence action may be deemed not legitimate in the context of a s. 11(

b) application if it isdesigned to delay or if it exhibits marked inefficiency or marked indifference toward delay. [Emphasis added] [123] Inaction or omission on the part of the defence can also render the conduct of the defence illegitimate. Such a finding makessense in light of the cultural shift required by Jordan that « All those associated with the justice system – defence counsel included - mustnow accept that many practices that were once commonplace or merely tolerated are no longer compatible with the right guaranteed by s.11b) of the Charter. »

As the Court explained in in Cody: [33] As well, inaction may amount to defence conduct that is not legitimate (Jordan, at paras. 113 and 121). Illegitimacy may extend toomissions as well as acts (see, for example in another context, R. v. Dixon, (SCC), [1998] 1 S.C.R. 244, at para. 37).Accused persons must bear in mind that a corollary of the s. 11(

b) right “to be tried within a reasonable time” is the responsibility toavoid causing unreasonable delay. Defence counsel are therefore expected to “actively advanc[e] their clients’ right to a trial within areasonable time, collaborat[e] with Crown counsel when appropriate and . . . us[e] court time efficiently” (Jordan, at para. 138). [124] In the present case, attributing delay to defence conduct centres on the late Charter applications to exclude evidence. Should thedefence be blamed for its failure to remit the said applications on time?

For that matter, should it bear the responsibility of seriouslyunderestimating the time it took to hear its enhanced Charter application? Rather, should the Crown shoulder the blame for the lateapplication on account of its own failure to promptly remit the supplemental disclosure evidence? [125] Trial time had to be repurposed in order to accommodate the Charter application. Who should bear the responsibility ofunderestimating the duration of the hearing – the Crown, the defence or both of them (shared responsibility)?

As trials are «not well-oiled machines and unforeseeable or unavoidable developments can cause cases to quickly go awry[46],» can it be argued that neitherone of the parties is responsible (in which case the underestimation of time could constitute an exceptional circumstance)? 1. A matter of procedure rather than substance [126] Crown counsel submits, and I agree, that defence counsels did not engage in any deliberate and calculated tactics aimed atcausing delay. I add that the extensive Charter motions filed by defence counsels were not frivolous or wholly without merit.

However,the fact that the Charter application had merit does not mean that it must be treated as legitimate in the context of a s. 11(b)application[47]. [127] In the present matter, illegitimate defence conduct is predicated upon procedure rather than substance – «the decision to take astep as well as the manner in which it was conducted. ».

Essentially, it all boils down to the manner in which the late filing of thedefence’s enhanced Charter motion disrupted the normal course of the trial – leading inevitably to more postponements and more delaysin bringing this matter to an end. [128] The timing of defence conduct does fall squarely under the Jordan analysis[48]. In Rice v. R., 2016 QCCS 4659 BruntonJ. stated that: [42] In Jordan, the Supreme Court clearly states that defence actions legitimately taken to respond to the charges do not constitutedefence delay.

This Court holds that the concept of "legitimately", in this context, includes a finding that the defence acted in a timelyfashion. In other words, for a Jordan analysis, a non-frivolous, serious motion is not a "legitimate" defence action if it is not presented ina timely fashion. “The defence should not be allowed to benefit from its own delay-causing conduct”[49]. [Emphasis added] [129] In the present matter, issues with the timely filing of a Charter motion were a recurring theme. One will recall that no Chartermotion was ever filed the first time the case was scheduled to proceed (April 2020).

The next time the case was set for trial (February2021), Charter motions were filed beyond their due date. Two days initially reserved for hearing the motions (January 2021) had to bescrapped. [130] Given the late filing of the enhanced Charter application, there was no reasonable ability to reschedule the hearing before the trialwas slated to begin. Inevitably, evidence and arguments on the Charter application would gobble up time normally reserved for trialevidence. [131] Just as importantly, the late filing of the Charter motion meant that the Crown had no time to adequately prepare its response.

Notwithout concern, it had to reshuffle – in short notice – it’s witness list in order to accommodate the enhanced Charter motions presentedby defence counsels. It is not contested by defence counsels that Crown’s preparation time and the rescheduling of witnesses resulted inthe cancellation of the first week set for trial evidence (February 8, 2021)

[ 132 ] Next, there is no question that the revised and enhanced Charter challenges substantially added to the time required for the hearing of the defence applications. One will recall that the Charter motion announced by defence counsel at the first case-management conference was limited to the warrant and warrantless seizure of the clothing worn by one of the petitioners (Shawn Gerard Martell). Ultimately, the enhanced Charter motions filed on behalf of all the petitioners ran the whole gamut of rights violations.

Challenges were now being made in respect of: • The grounds for their detention, • The grounds for their arrest, • The force deployed by the police to arrest them, • Denial of their right to counsel, • The seizure of their clothing (with and without warrant), • The photographs taken of them (showing their bloodstained hands and clothes) at the station by police without the benefit of a second caution regarding the right to counsel. 2. Delays occasioned by the continuance of the Charter motion [ 133 ] Budgeting court time for a hearing is the responsibility of both parties.

In the present matter, however, there was no way the Crown could have anticipated how much time would be needed for the enhanced Charter challenges presented by the defence. While the defence knows the nature of the evidence the Crown intends to present, the Crown does not know the plans of the accused [50] . Ultimately, fault for underestimating Court time in this matter lies only with the defence. [ 134 ] Though the week of February 22, 2021, was repurposed to accommodate the enhanced Charter applications, it proved insufficient to hear all the evidence and arguments of the parties.

Two additional dates were required to complete the hearing – the 29 th and 30 th of July 2021. At the Jordan hearing (March 14, 2022), defence counsels argued that the delay (152 days) needed to continue the hearing should be shouldered by the Crown or be counted as «inherent delay» (and therefore not deducted from the Jordan clock).

In essence, their position was that this case should have been given priority on the judicial calendar given that delays were becoming an issue. [ 135 ] For the following reasons, I must dismiss the defence’s argument characterizing the continuance of the hearing as «Crown delay» or «inherent delay»: [ 136 ] Firstly, the failure to budget court time for the hearing falls to the defence. Had they been diligent in preparing their enhanced Charter challenges, the Court would not have lost the first two dates in January 2021 to hear the motions.

Moreover, prompt preparation of the Charter motions would have allowed the Court to

schedule the allotted time for the hearing without cutting into time fixed for trial evidence. [ 137 ] In short, had the defence filed their Charter motion on time, additional dates would not have been necessary and much of the delay would have been avoided. [ 138 ] Secondly, I note that the defence did not raise an issue with the dates reserved in July to continue their Charter challenges.

Delays in setting those dates only became a problem at the Jordan motion (March 14, 2022). [ 139 ] Finally, underestimating the time it takes to hear a Charter motion (or a trial for that matter) will not be typically mitigatable. Firstly, scheduling additional dates has to consider the availabilities of the parties – Crown, defence and the presiding judge. The record is silent as to whether or not earlier dates were available but declined on account of a scheduling conflict. Secondly, obtaining an earlier date has to contend with the fact that cases have already been slated on the Court calendar.

While squeezing in a continued case of short duration without undue delay may be manageable for shorter hearings, it could prove to be a challenge for lengthier cases. [ 140 ] I realize full well that the Jordan decision imposed upon all parties – including the Court – to «work» in concert to eschew delays. Court resources, however, are not unlimited. Reserving two full days to complete the Charter motion is not a simple matter of snapping one’s fingers.

This reality has to be considered when qualifying delays occasioned by the continuance of a hearing – all the more so, when the adjournment is caused by the failure of one of the parties to properly budget court time. 3. Can late disclosure excuse the late filing of the Charter motion (and the ensuing delays)? [ 141 ] As mentioned above, the defence did not accept any responsibility for the late filing of their Charter motions. Instead, fault lay with the Crown for being negligent in fulfilling its disclosure obligations in a timely manner.

Without the requested disclosure, defence could not be expected to prepare a Charter motion, let alone anticipate how much court time was required to present it. [ 142 ] The supplemental disclosure (supposedly vital to the crafting of the Charter motions) was only delivered to defence counsels on October 30, 2020.

At that time, however, Me Chevalier was in the middle of a jury case – limiting, therefore, the time he could take to study the supplemental evidence and craft a Charter motion without undue delay. [ 143 ] for the following reasons, I must dismiss the arguments submitted by defence counsels excusing the late filing of their Charter applications: • Disclosure to prepare a Charter motion should have been requested at an earlier date [ 144 ] As mentioned in an earlier

section of this decision, defence counsels were put on notice at the first case management conference

held on September 26, 2019, that the Crown would introduce DNA evidence in support of its case (assuming a positive DNA result). Ifthe supplemental evidence was truly necessary for a Charter application to exclude evidence, it should have been requested early on inthe proceedings and not in May 2020. [145] If want of prompt disclosure was really an issue in crafting a coherent Charter motion, it was incumbent upon defence counsels totake steps to compel the disclosure. But none were taken.

Of course, the obligation to disclose all relevant evidence falls to the Crown.However, as officers of the court, defence counsels have an obligation to pursue disclosure diligently. When counsel becomes (or oughtto become) aware, from other relevant material produced by the Crown, of a failure

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