r v. Shahab, 2016 QCCQ 2701

R. c. Bakhshi 2016 QCCQ 2701 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL « Criminal and Penal Division » N° : 500-01-053409-113 DATE : April 18, 2016 BEFORE THE HONOURABLE YVAN POULIN, Q.C.J. HER MAJESTY THE QUEEN Prosecutor v.

Shahab BAKHSHI Accused RULING ON AN APPLICATION FOR A JUDICIAL STAY OF PROCEEDINGS [ 1 ] The accused stands charged with 10 counts of conspiracy, theft, fraud, possession of stolen vehicles, identity theft, possession of a prohibited weapon, possession of drugs, possession of fraudulent credit cards, possession of forgery instruments and possession of forged documents. It is alleged by the prosecution that the accused was an important figure in a stolen car ring believed to have exported many vehicles over a one-year span. [ 2 ] The accused was arrested in March 2011.

A preliminary inquiry was held in March 2013 after which the accused was committed to stand trial. The matter was then adjourned a few times and was ready to be set for trial in December 2014. Since three weeks were required for trial, the first available dates were in September 2016. [ 3 ] Given that almost five and a half years will have elapsed between the arrest and the beginning of the trial, the accused has requested a stay of proceedings.

He argues that his constitutional right to have his trial within a reasonable delay pursuant to s. 11b) of the Charter is infringed and that the Court should immediately stay all proceedings brought against him. He argues that the delay is disproportionate and claims that he suffers a specific prejudice. [ 4 ] Witnesses, including an expert, were called on the issue of prejudice by the accused.

The accused submits that the justice system should not tolerate delays of this nature which are largely outside the guidelines prescribed by Appellate Courts. [ 5 ] The Crown submits, on the other hand, that a detailed analysis of the justification of the delays in the present case should lead the Court to a different conclusion. According to the Crown, the delay is reasonable and in compliance with the applicable case-law given the nature of the case and the reasons that led to many adjournments.

I – PROCEDURES AND DELAYS The arrest [ 6 ] The accused was arrested on March 23, 2011, following an investigation led by joint police forces and the Canada Border Services Agency. Along with three alleged accomplices, he was charged with various counts and appeared in Court on March 24, 2011. On March 30, 2011, he was granted bail on his entering into a recognizance with sureties.

The case was adjourned to April 8 and again to April 18, 2011. [ 7 ] On April 18, 2011, co-accused Jacques Lefebvre, whom was detained at the time, sought an adjournment of his bail hearing claiming that he was waiting for a judgment from the Court of Appeal that could have an impact on his case. The case of all co-accused was thus adjourned to May 11, 2011. On that date, the case was once more adjourned to June 6, 2011, without further comment. [ 8 ] On June 6, 2011, Jacques Lefebvre asked for a bail hearing that was set for August 23, 2011; all co-accused agreed to this adjournment.

Lefebvre pleaded guilty on August 23, 2011 and was immediately sentenced. With the agreement of all remaining

accused, the case was again adjourned to September, 22, 2011. [ 9 ] On September 22, 2011, the Crown informed the Court that the preliminary inquiry sought by all the accused was expected to be long. Given this fact, a pre-trial conference was set for November 10, 2011. The pre-trial conference was then adjourned to December 20, 2011, January 26, 2012, March 9, 2012, and April 12, 2012.

The first adjournment was required as the Court could not proceed; the second adjournment was at the request of both the Crown and defense, as they were unavailable; and the third and fourth adjournments were due to the assigned Crown counsel being unavailable and on vacation. The preliminary inquiry [ 10 ] The pre-trial conference was finally held on April 12, 2012, and the preliminary inquiry was set and proceeded for 10 days from March 18 to 28, 2013. On April 22, 2013, the accused was committed to stand trial on various counts and the case was postponed to May 23, 2013.

The conflict of interests issue and the pre-trial conference [ 11 ] On May 23, 2013, co-accused Troy Lartigue-Cools and Kary Shaw settled their case. Thereafter, the accused was the only remaining accused on file. With the consent or at the request of his counsel, his case was remanded to June 25 and again to September 3, 2013. [ 12 ] On September 3, 2013, it was determined that a pre-trial conference would be needed: it was scheduled for October 29, 2013. At the pre-trial conference, the Court requested that the Crown provide the defense with a “ best settlement offer ” and draft agreements.

The conference was remanded to November 21, 2013. [ 13 ] On November 20, 2013, the Crown sent an e-mail informing the pre-trial conference judge of a possible conflict of interest that would disqualify counsel for the accused from acting in the present case.

The possible conflict stemmed from the fact that counsel for the accused had acted in the past for a witness that the Crown now intended to call at trial. [ 14 ] The issue was specifically raised by the Crown at the pre-trial conference on the following day and the presiding judge stated that a case management judge would specifically be appointed to deal with this issue. The case was consequently remanded to January 20, 2014. [ 15 ] On that date, given that the Crown was still undecided as to whether they would call the witness or not, the Court required the filing of a written motion.

The said motion was heard on February 19, 2014, and counsel for the accused was then disqualified from acting in the case. In order to let the accused find a new lawyer, the case was adjourned to April 24, 2014. The new lawyer and the trial date [ 16 ] On April 24, 2014, defense counsel appearing before the Court on the present motion became counsel of record and requested an adjournment to May 30, 2014, in order to review the disclosure in the case. Since defense counsel was required in Court in another case, the pre-trial conference was again adjourned to August 25, 2014.

On that date, it was yet again adjourned to October 23, 2014, as defense counsel was not ready to outline the pre-trial motions he intended to file. [ 17 ] On October 23, 2014, defense counsel outlined the motions, including the motion for stay based on the unreasonable delays, but the case was once again adjourned since the written motions had not yet been filed. [ 18 ] On December, 18, 2014, the hearing of the motion to stay the proceedings was set for May 15, 2015. In accordance with the Court calendar, the trial was also set to begin on September 12, 2016.

The motion to stay the proceedings [ 19 ] As scheduled, the hearing on the motion started on May 15, 2015 for a full day. It was intended to continue on June 26, 2015, but the defense sought an adjournment in order to get a psychological expert assessment concerning the specific impact of the delays on the accused. The defense ultimately closed its case on the motion on December 17, 2015. Arguments were heard on this issue on December 17, 2015 and February 15, 2016. The trial is still scheduled to start next September. II – EVIDENCE ON PREJUDICE [ 20 ] The accused testified on this issue.

His mother, grand-mother, two sisters and a psychologist were also called by the defense. The Crown did not call any witnesses on this issue. [ 21 ] The accused stated that he was a professional day trader at the time of his arrest. He mentioned that he suffered emotional stress and insomnia following the police raid at his place. Further to his arrest, he had strict bail conditions to respect. Some of those conditions were vacated or varied relatively quickly. Following his arrest, the accused lived with his mother and sister for more than two years.

In 2013, he decided that he wanted to live alone and moved into a condo located downtown Montreal. [ 22 ] According to the accused and members of his family, there was a change in his attitude after the arrest. He gradually isolated himself and became more and more negative and antisocial. He stopped talking to his mother and sisters and did no longer take time to visit his grand-mother.

To illustrate their brother’s change in attitude, both sisters referred to an incident that happened at a wedding when the accused, whom had been drinking, was rude towards the oldest sister. [ 23 ] The evidence shows that there is a history of depression and anxiety in the family. Family members of the accused acknowledge that it affects the extended family and that medication is taken by some of them. According to them, the accused started to be nervous, suspicious and paranoid right after his arrest. He was then 22 years old. One of his sisters stated that he was afraid of being watched;

the other sister said that he seemed afraid that the RCMP would come back any day. [ 24 ] Four years after his arrest, the accused met with a psychologist for an evaluation. This step was taken at the suggestion of his new counsel. In essence, the mandate of the psychologist was to assess the psychological health of the accused with a specific focus on the impact of the delays. The evaluation was based on interviews and answers from the accused, using various scales, and interviews with family members.

The psychologist met the accused for the first time in May 2015 and did not know him prior to the evaluation. [ 25 ] In her report, the psychologist concluded that the accused “ has been suffering from severe depression, moderate anxiety disorder and symptoms related to post-traumatic stress ” [1] . She stated that the arrest and police raid of March 2011 was a traumatic event that he was “ never able to process ” [2] . She listed the post-traumatic symptoms of the accused [3] .

In addition to the impact of the arrest itself, she opined that the delay to hold the trial has caused additional harm considering that he has since been living on “ stand-by ” and “ on the edge ” without any closure [4] . According to her, the accused fears the possibility of going to jail which is an unknown and lingering factor. [ 26 ] In cross-examination, the psychologist acknowledged that there might be a genetic predisposition in the family concerning depression. She further said that guilt and shame associated with criminal charges could not be left out of the equation as triggering factors.

The psychologist also said that she doesn’t know the involvement of the accused in the case and did not discuss the specifics with him at any time. [ 27 ] As to treatment, the psychologist suggested a coping skills training that would help the accused better deal with anxiety and “ reinforce him to live in the here-and-now ”. She did not recommend that he be seen by a physician to get a prescription for medication.

III – ISSUES [ 28 ] This case raises the two following questions: ➢ Whether it has been established that the delay is unreasonable and contrary to s. 11b) of the Charter ? ➢ If so, whether the procedures should be stayed pursuant to s. 24(1) of the Charter ? IV – ANALYSIS [ 29 ] The applicable principles and legal framework on these issues was set out by the Supreme Court in R. v . Askov [5] , R. v. Morin [6] and R. v . Godin [7] and by the Court of Appeal for Quebec in R. c . Boisvert [8] , R. c . Camiran [9] and R. c .

Jean-Jacques [10] . [ 30 ] As stated in these cases, the following factors must be considered in determining whether the delay is reasonable or not : ➢ The length of the delay; ➢ Waiver of time periods; ➢ The reasons for the delay, including : • Inherent time requirements of the case; • Actions of the accused; • Actions of the Crown; • Limits on the institutional resources; • Other reasons for the delay; and ➢ Prejudice to the accused. [ 31 ] The primary purpose of

section 11b) is to protect the rights of the accused to security of the person, liberty and fair trial. Appellate Courts have stressed the need for a flexible rather than rigid approach to weighing the reasons for delay. Hence, rather than apply a mathematical or administrative formula, judges must balance the interests which s. 11b) of the Charter is designed to protect against the factors that caused the delay. The guidelines were never intended to be considered limitation periods. In R. v. MacDougall , at paragraph 41 , the Supreme Court held: The analysis must not proceed in a mechanical manner.

The factors and framework set out in Askov and Morin are not immutable or inflexible. As noted by L’Heureux-Dubé J. in Conway , supra , at p. 1673, the list of factors can never be exhaustive. Nor is an underlying focus on only certain periods of the delay appropriate: Conway, supra, at p. 1674. In every case it must be borne in mind that the ultimate question for determination is the reasonableness of the overall delay. [11] [ 32 ] In R. v .

Boisvert , at paragraph 53 , the Court of Appeal further held that: [53] Les lignes directrices constituent un outil précieux, mais leur application est toujours subordonnée à la situation particulière et globale du cas sous étude. [12] [ 33 ] In the case at bar, a delay of almost five and a half years will have elapsed between the arrest and the upcoming trial. After careful consideration, the various parts of the delay can be broken down as follows :

a) From March 23, 2011 to April 18, 2011: inherent delay (26 days) following the arrest of the accused for disclose of evidence and

bail hearing;

b) From April 18, 2011 to August 23, 2011: inherent or neutral delay (127 days – or 4 months and 5 days) to hold the bail hearing of co-accused Jacques Lefebvre. From the record, it is clear that Lefebvre wanted to wait for a decision from the Court of Appeal before proceeding. None of the co-accused raised any concern about this. In that context, the Crown cannot be blamed for not having insisted that the joint prosecution move forward. In R . v.

Farewell [13] , at paragraph 89, the Court of Appeal for British Columbia held that: [89] […] in the circumstances of this case it would not be appropriate to define delays caused by the co-accused as systemic delays. The jurisprudence in this area defines delays caused by a co-accused as neutral delays which do not count against either party in the s. 11(

b) reasonableness assessment: R. v. Martin , 2002 BCSC 1242 at para. 30 ; R. v. Sapara , 2001 ABCA 59 at para. 57 ; R. v. Moreno , [1999] B.C.J. No. 1461 at para. 11 . (Emphasis added)

c) From August 23, 2011 to September 22, 2011: inherent or neutral delay (30 days) as counsel for the accused agreed to adjourn the case to set a pre-trial conference;

d) From September 22, 2011 to November 10, 2011: inherent or neutral delay (49 days) to set the pre-trial conference;

e) From November 10, 2011, to December 20, 2011: systemic delay (40 days) due to an adjournment required by the Court;

f) December 20, 2011, to January 26, 2012: neutral delay (37 days) as both parties were not available on the date in question. Counsel for the accused agreed to adjourn the hearing;

g) January 26, 2012, to April 12, 2012: delay attributable to the Crown (77 days) as a result of the absence of counsel for the prosecution;

h) April 12, 2012, to March 18, 2013: systemic delay (340 days or 11 months and 6 days) to begin the preliminary inquiry;

i) March 18, 2013, to April 22, 2013: inherent delay (35 days) to hold the preliminary inquiry and deliver the decision on committal;

j) April 22, 2013, to May 23, 2013: inherent or neutral delay (31 days) to allow the parties to review the file following the decision on committal;

k) May 23, 2013 to June 25, 2013: neutral delay (33 days) as both parties agreed to adjourn the case;

l) June 25, 2013, to September 3, 2013: delay attributable to the defense (70 days) as defense counsel sought an adjournment;

m) September 3, 2013, to October 29, 2013: inherent delay (56 days) to set the pre-trial conference. In recent years, pre-trial conferences have become an essential component of the justice system designed to ensure effective and efficient use of available court resources . In R . v. Nguyen [14] , the Court of Appeal for Ontario held that the time needed to schedule, prepare for, and conduct pre-trial conferences should be considered an inherent time requirement of the case.

At paragraph 54, the Court specifically held that: [54] […] Pre-hearing conferences, particularly where proceedings follow a lengthy investigation, sometimes add several weeks to the intake period in a case, but may well result in an earlier trial date, a shorter and more focused trial, or a reduction in the number of counts and accused going to trial. The time required to schedule, prepare for, and conduct pre-hearing conferences should be considered an inherent time requirement of the case, both generally and specifically for the purposes of a s.11(

b) analysis: Khan , at para. 53; Tran , at paras. 36-37; and Cranston , at para. 46. In the case at bar, the delay to

schedule the pre-trial conference is consequently considered inherent to the case;

n) October 29, 2013, to November 21, 2013: inherent delay (23 days) as the pre-trial conference had to be continued to allow the parties to further discuss possible agreements and submit a “ best settlement offer ”;

o) November 21, 2013, to May, 30 2014: the Crown is primarily responsible for this delay (190 days or 6 months and 9 days). From the record, it is clear that the Crown should have determined much sooner whether the witness Forcier would be called for trial or not. While it is true that the potential conflict of interest was mentioned before the preliminary inquiry, the Crown should have made a decision in the few days that followed. As shown by the record, the Crown took nearly eight months to decide this question. All the subsequent procedures were therefore delayed.

Further, the accused had to hire a new lawyer that needed time to take note of the disclosure. The Court cannot accept the Crown’s argument that this delay should fall on the defense’s shoulders. Had the Crown made a decision in a timely way, this issue would have been settled 6 months earlier;

p) May 30, 2014, to August 25, 2014 : delay attributable to the defense (87 days) as counsel for the accused was unavailable;

q) August 25, 2014, to October 23, 2014: delay attributable to the defense (59 days) as counsel was not ready to outline the pre-trial motions that had to be filed for the upcoming trial;

r) October 23, 2014, to December 18, 2014: delay attributable to the defense (56 days) as written motions had not yet been filed;

s) December 18, 2014, to September 12, 2016: systemic delay (634 days or 1 year, 8 months and 25 days) to begin the trial. [ 34 ] In sum, the overall delay of slightly less than five years and a half can be apportioned as follows: systemic delay of 33 months and 10 days; delay as a result of Crown actions of 8 months and 26 days; delay as a result of defense actions of 8 months and 27 days; and inherent delay of 14 months and 20 days. [ 35 ] The combined systemic and Crown delay is three and a half years (or 42 months). This delay is thus far beyond the Morin

guidelines. [ 36 ] With regard to prejudice, it is important to distinguish prejudice resulting from the criminal charges and prejudice consequential to the delay [15] . The Supreme Court has made it clear that prejudice may be inferred from the length of the delay. In R . v. Godin [16] , at paragraphs 31 and 37, the Court held: [31] The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin , at p. 801, even in the absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such an inference will be drawn.” Here, the delay exceeded the ordinary guidelines by a year or more, even though the case was straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. […] [37] It is difficult to assess the risk of prejudice to the appellant’s ability to make full answer and defence, but it is also important to bear in mind that the risk arises from delay to which the appellant made virtually no contribution.

Missing from the analysis of the majority of the Court of Appeal, in my respectful view, is an adequate appreciation of the length of the delay in getting this relatively straightforward case to trial. As noted already, prejudice may be inferred from the length of the delay . (Emphasis added) [ 37 ] In the case at bar, as already mentioned, the delay is substantially beyond the Morin guidelines. Even though this case is not a simple one, it cannot either be described as a mega case.

The issues are relatively simple and the length of the upcoming trial is as a result of numerous circumstantial pieces of evidence that must be presented. [ 38 ] While it is true that the bail conditions were relaxed as the delay lengthened, it must be acknowledged that the accused has now been on judicial interim release for more than five years. It must also be recognized that the charges have been hanging over his head for all that time. [ 39 ] Evidence of actual prejudice was presented by the accused. It has been established that his attitude and psychological health started to change after the arrest.

He gradually isolated himself and became more and more negative and antisocial. The conclusion of the psychologist that the accused suffered - and is still suffering - from “ severe depression, moderate anxiety disorder and symptoms related to post-traumatic stress ” remains unchallenged. [ 40 ] Notwithstanding the history of depression and anxiety in the family, the Court cannot simply brush aside the opinion of the psychologist that the arrest, police raid and criminal charges were triggering factors that led to those physical and psychological problems in the specific case of the accused.

Furthermore, given the record and the evidence as it stands, there is nothing in the evidence that would allow the Court to disregard the opinion of the psychologist that the delay to hold the trial caused additional harm to the accused as he has been living on “stand-by” and “without closure” for a long time. [ 41 ] The Court agrees with counsel for the Crown that the alleged prejudice was initially triggered by the arrest rather than the delays. Furthermore, it is true that the right of the accused to make full answer and defence doesn’t seem to be jeopardized by the passage of time.

However, as stated by the Supreme Court in R . v. Godin at paragraph 38 : [38] […] it does not follow from a conclusion that there is an unquantifiable risk of prejudice to the appellant’s ability to make full answer and defence that the overall delay in this case was constitutionally reasonable. Proof of actual prejudice to the right to make full answer and defence is not invariably required to establish a s. 11b) violation .

This is only one of three varieties of prejudice, all of which must be considered together with the length of the delay and the explanation for why it occurred. [17] [ 42 ] The present case can be distinguished from the case-law submitted by the Crown. In R . c. Camiran [18] , the combined systemic and Crown delay of 16 months was substantially shorter than the one in the present case and the evidence of actual prejudice was not comparable. In R . c. Boisvert [19] , the combined systemic and Crown delay of 21 months was also shorter than the case at bar.

The same can be said of the respective delays of 21 months in the cases of R . c. Jean-Jacques [20] , R. c . Dupuis [21] and R. c . Béliveau [22] . [ 43 ] It is evident that there is a strong societal interest in having serious charges tried on their merits. However, there is an equally strong individual and societal interest in having a justice system that can hold criminal trials within a reasonable time, as prescribed by the Charter . As stated by McLachlin J. in R . c. Morin [23] : When trials are delayed, justice may be denied . Witnesses forget, witnesses disappear. The quality of evidence may deteriorate.

Accused persons may find their liberty and security limited much longer than necessary or justifiable. Such delays are of consequence not only to the accused, but may affect the public interest in the prompt and fair administration of justice . (Emphasis added) [ 44 ] It is true that the district of Montreal is a busy judicial centre that poses important administrative challenges for the justice system. Albeit those difficulties, which are attributable to a wide range of factors, the Charter continues to apply.

Some might say that the delay issues will have to be addressed swiftly and promptly by the competent governing bodies. However, in the interim, it is clear that all accused before the criminal courts still have the right to have their trial within a reasonable time. [ 45 ] In the present case, having considered the evidence and the applicable principles, the Court is satisfied that the accused has met its burden. The delay is unacceptable, improper and more than twice the Morin guidelines. Although three weeks were required for trial, the case is not that complex or difficult.

An actual prejudice has been established by the accused as already mentioned. Given all the evidence, the Court concludes that the right of the accused to be tried within a reasonable time has been breached and that the justice system cannot tolerate delays of this nature for a case like this one. Given the applicable principles, the Court is of the opinion that a stay of proceedings should be entered pursuant to s. 24(1) of the Charter . [ 46 ] For all those reasons, the application for a judicial stay of proceedings is granted.

__________________________________ YVAN POULIN, J.C.Q. Me Alexandre Gautier For the prosecution Me Christian Gauthier For the accused Dates of hearing : May 15 and December 17, 2015 February 15, 2016