r v. Aomir, 2020 QCCQ 1656

R. c. Abdul Latif 2020 QCCQ 1656 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-198891-191 500-01-201948-202 DATE: April 16, 2020 ______________________________________________________________________ BY THE HONOURABLE MÉLANIE HÉBERT, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecutor v. Aomir ABDUL LATIF Accused ______________________________________________________________________ DECISION [1] ______________________________________________________________________ OVERVIEW [ 1 ] Mr.

Latif is accused of having committed various offenses against his former partner, the complainant. His three-day trial was set to begin on April 22, 2020. [ 2 ] Because of the exceptional situation caused by the COVID-19 outbreak, emergency measures were introduced to protect the health of the Quebec population. The Quebec government adopted, on March 13, 2020, an Order in Council declaring a health emergency throughout the province of Quebec. This Order has since been renewed and is still in force as of April 16, 2020.

In addition, the Quebec government has ordered the minimization of all non-priority services and activities, including judicial activities, until May 4, 2020. [ 3 ] On March 25, 2020, the Court of Quebec issued a “Plan de continuité des services de la Cour du Québec dans le contexte de la COVID-19”, which limits judicial activities to those that are urgent. This Plan is in force until May 31, 2020. In criminal matters, such as Mr. Latif’s case, a trial will proceed only if a judge decide that it is urgent. [ 4 ] Thus, in the matter at hand, the Court must decide if Mr.

Latif’s trial is urgent and should proceed as scheduled. ANALYSIS A two-step analysis [ 5 ] In R. v. S.Z. [2] , Justice Koturbash of the Provincial Court of British Columbia adjourned a preliminary inquiry after having decided that it was not urgent.

In his decision, he identified the following factors as being relevant when determining whether a matter is urgent: • The nature of the hearing; • The accused’s custodial status and whether a bail review is available; • Is the case within or outside the Jordan guidelines; • Will the trial be completed in the time allotted; • Is there a risk of prejudice owing to memories fading, witnesses becoming unavailable, or other types of evidence being

lost; • Is there a risk that counsels or witnesses will become unavailable; • Is the accused suffering from a condition that will impair his future ability to make full and answer and defence, if the matter is adjourned; and • Has the accused’s pre-trial custody exceeds what he would receive as a sentence, if he was convicted. [ 6 ] In the course of his analysis, Justice Koturbash also took into consideration other factors that could have an impact on the fairness of the planned preliminary inquiry, thereby recognising that various other considerations come into play when deciding if a hearing should proceed during the COVID-19 pandemic.

As he mentioned, this is a two-step analysis: the court must decide if the matter is urgent, and if it is, whether it is possible to proceed. [ 7 ] In R. v. Lamothe [3] , Justice Côté of the Quebec Court adjourned an upcoming trial after having used the same two-step analysis. [ 8 ] The Court endorses this two-step analysis. Indeed, in deciding whether to adjourn or proceed to a trial, the Court must balance the need to support efforts to limit the spread of the outbreak in the general population with the need to preserve the rights of the parties involved.

Moreover, the situation that we are facing is unique and creates practical challenges that evolve on a daily basis. Thus, the decision to adjourn a trial cannot be limited to legal considerations. Public health considerations, the need to preserve the health of those involved in the trial process and practical considerations are also relevant to the decision. Relevant Facts Concerning Mr. Latif’s Trial [ 9 ] In the matter at hand, the Court communicated with the lawyers representing the Prosecution and the Defense and sought their comments on the urgency criteria.

From these communications, the following facts emerged: • In December 2019, Mr. Latif, was accused of assault, sexual assault, forcible confinement, harassment, uttering threats and theft against the complainant; these offenses occurred between January 1, 2019 and October 3, 2019; • In February 2020, while he attended Court in this matter, Mr. Latif allegedly committed two additional offenses: obstructing the course of justice by attempting to dissuade the complainant from testifying and harassing her; • As a result, Mr.

Latif was arrested and an information was issued against him for these new offenses; the Prosecution objected to his release from custody and also sought his detention in relation to the first file; • On February 27, 2020, a bail hearing was held; the next day, a judge ordered Mr. Latif’s detention in both of his pending files; • On that same day, the Prosecution and the Defence agreed to join the two files for trial and a three-day trial was set to begin on April 22, 2020; • Mr.

Latif has prior convictions but he has never been incarcerated; he has no pending cases and is not serving a sentence of detention; in short, his detention flows from the offenses for which a trial is set; • Mr.

Latif wishes for the trial to proceed; he and his family are anxious for this matter to be over; • The complainant was deeply affected by the alleged offenses; according to the Prosecution, she is suffering from post- traumatic stress syndrome; she also expressed the wish to proceed; • The complainant is available to testify before the Court on April 22, 2020; she understands that there are no victim support services available at this time but she is still willing to testify; she will be requesting that the police officer who investigated this matter act as her “support person” pursuant to

Section 486.1 (2) of the Criminal Code ; • The police officer who investigated this matter is available to attend Court on April 22, 2020; • The parties have negotiated and agreed upon a set of facts which will be admitted by the Defence; as a result of these negotiations, the Prosecution will only need to call one witness at trial, the complainant; moreover, a translator is no longer required; • The Prosecution assesses that the complainant’s testimony-in-chief will most likely take a day and a half given the number of offenses alleged and the period that they cover; the Defence assesses the duration of its cross-examination at approximately an hour; this assessment appears over-optimistic given the number of offenses and the period that they cover; in short, even if admissions were made, this is still a three-day trial; • Mr.

Latif agrees to be present at his trial through a video link, thereby avoiding the need for transport between the prison and the Court; the Prosecution does not object to this suggestion; that being said, proceeding in such a manner complicates communications between Mr. Latif and his lawyer throughout the trial and could potentially prolonge the trial; moreover, it has the potential to complicate the presentation of the evidence, especially if exhibits have to be presented to Mr. Latif; • Mr.

Latif’s father wishes to be present during the trial; • The lawyer for the Prosecution will be accompanied by a senior lawyer from her office for the duration of the trial; • The case is well within the Jordan guidelines; that being said, Mr. Latif has shown a desire to proceed quickly by setting a trial date immediately after the bail hearing;

• There is no indication that the evidence will deteriorate or that a witness or a counsel will become unavailable if the trial is postponed; there is no evidence that Mr. Latif is suffering from a condition that will impair his future ability to make full answer and defence; • The Defence has not argued that the pre-trial custody of Mr. Latif exceeds the eventual sentence which could be imposed upon him, if found guilty.

Other Relevant Facts [ 10 ] The Court took judicial notice of the publicly available COVID-19 outbreak information published by the governments of Canada and of Quebec on their official Websites [4] . Quebec is the province with the most COVID-19 confirmed cases throughout Canada. On April 15, 2020, at 1:15 p.m., there were 14 860 confirmed cases of COVID-19 in Quebec, most of them within the greater Montreal region.

Montreal has 6 830 cases; Laval has1 455 cases; and Montérégie has 1 686 cases. [ 11 ] According to the COVID-19 potential scenarios published by the government of Quebec, the outbreak will reach its peak on or about April 18, 2020, a few days before Mr. Latif’s trial is set to begin. [ 12 ] The outbreak has reached a stage where community transmission is present. According to the government of Quebec, COVID-19 is mostly spread by contact with someone who is infected or by touching infected surfaces. However, many people who are infected only have mild symptoms. Others may show no symptoms at all.

There is thus a risk, albeit limited, of being infected by being in contact with someone who does not have the symptoms usually associated with COVID-19. This is why self-isolation is of outmost importance. That being said, the government of Quebec also recommends that people stay 2 meters apart when outside of their home. [ 13 ] Since the outbreak’s beginning, the detention facilities and the courts have had to adapt their ways. In order to limit the spread of the outbreak within detention facilities, detainees now appear before the Court by video or, in some circumstances, by telephone.

Video units in detention centres have become a precious commodity, especially at the Bordeaux detention centre where Mr. Latif is detained. Judges presiding over bail hearings in which an accused was present by video have experienced lengthy delays because of the limited number of video units available. Some other judges have had to suspend ongoing proceedings to allow for the video unit to be used by someone else. [ 14 ] In the present circumstances, there is no guarantee that Mr. Latif would have access to a video unit for an entire day, let alone three full days.

Thus, if we were to proceed in this fashion, lengthy delays would have to be expected. Moreover, given that there are so few video units, monopolizing one of them for three days could have an adverse impact on the daily bail hearings that take place at the Montreal courthouse or elsewhere. Applying the two-step approach to Mr. Latif’s Trial [ 15 ] There is a need to proceed swiftly in this matter because Mr. Latif’s liberty is directly at stake and because he took steps to expedite the proceedings by scheduling a trial immediately after his bail hearing.

That being said, in the present circumstances, there is a substantial likelihood that the trial could not be completed in three days given the delays associated with the use of a video unit. [ 16 ] Moreover, the present circumstances create challenges that may impact on the fairness of Mr. Latif’s trial. Indeed, the overwhelming need for video units at the Bordeaux detention center could unnecessarily prolonged the complainant’s testimony, making it more difficult for her to testify. Furthermore, the fact that Mr.

Latif will be present by video raises two issues: first, it will be difficult for him to communicate efficiently and privately with his lawyer; second, it will be difficult for the lawyers to show exhibits to him.

His right to counsel and the efficiency of his examination-in-chief or his cross-examination could be hampered. [ 17 ] Considerations must also be given to the fact that monopolizing one of the video units available at the Bordeaux detention centre for three days could have an adverse impact on bail hearings in the Montreal courthouse or even in other courthouses in the province of Quebec. [ 18 ] Finally, holding a three-day trial beginning on April 22, 2020 in the Montreal courthouse raises important public health and safety considerations.

At this stage, compelling the complainant to leave the safety of her home to come to the Montreal courthouse for at least two days (maybe three) is inappropriate and goes against the current self-isolation recommendation made by the government of Quebec. The same can be said for the three employees of the Court (a clerk, a bailiff, a special constable), the three lawyers and the police officer who will have to travel from their homes to the courthouse during these three days.

Moreover, the nature of a criminal trial, the possibility of having to handle evidence and the mere fact that 9 persons have to be in the same courtroom makes it difficult, if not impossible, to abide by the recommendation of the government of Quebec to keep a distance of 2 meters between each of us. [ 19 ] There is a certain urgency to this matter but this urgency can be attenuated by offering a bail review to Mr. Latif pursuant to

Section 523 of the Criminal Code . Thus, given the above-mentioned public health considerations, the need to preserve the health of those involved in Mr. Latif’s trial, the need to ensure the fairness of the trial and the above-mentioned practical considerations, the Court orders that Mr. Latif’s trial begins on April 22, 2020 for the purpose of holding a bail review pursuant to

Section 523 of the Criminal Code . The evidentiary part of the trial is postponed, for the time being.

CONCLUSION For these reasons, the Court: ORDERS that Mr. Latif’s trial begin for the purpose of holding a bail review pursuant to

Section 523 of the Criminal Code ; POSTPONES the evidentiary part of the trial. __________________________________ MÉLANIE HÉBERT, J.C.Q. Me Marie-Jeanne Gratton Attorney for the Prosecutor Me Walter Sterling Attorney for the Accused