2023 QCCQ 1398, 2023 QCCQ 1398

Snowball c. R. 2023 QCCQ 1398 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal Division No: 635-01-020009-214 DATE: March 20, 2023 ______________________________________________________________________ BY THE HONOURABLE MARIE-CHANTAL BRASSARD, J.C.Q. ______________________________________________________________________ JACOB SNOWBALL Applicant-accused v.

HIS MAJESTY THE KING Respondent-prosecutor ____________________________________________________________________ AMENDED RULLING ON APPLICATION TO STAY THE PROCEEDINGS-DELAY- SECTIONS 11b) and 24 OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOM [1] ______________________________________________________________________ [ 1 ] Since the applicant-accused (will be referred to as the accused) has pleaded guilty, 546 days have elapsed at the time of the sentencing hearing.

The defence has presented an application to have the proceedings stayed as the rights of the applicant to be sentenced within a reasonable delay has been infringed under

section 11

b) of the Canadian Charter of rights and freedoms . OVERVIEW [ 2 ] The accused has pleaded guilty on August 19, 2021, to the following accusation: On or about October 30,2020, in Kuujjuaq, district of Abitibi, did commit a sexual assault on G.L (1994-[...]), committing thereby indictable offence provided by

section 271

a) of the Criminal code . [ 3 ] On that day, the court did order the production of a Pre-sentence Report and a Gladue Report for the next court date, which was scheduled on February 3, 2022. [ 4 ] Then the sentence hearing was postponed to July 22, 2022. Although the Pre-sentence report was produced in time, the Gladue report was not ready. [ 5 ] The court week of July 18 to July 22, 2022, was cancelled due to a lack of judicial resources.

But the Gladue report was also not ready as reports for detainees had been prioritized. [ 6 ] On September 13, 2022, the Gladue report was not produced, and the file was remanded to October 24, 2022. The report was given to parties on October 19, 2022. [ 7 ] But then on October 24, 2022, the court arrived late because of mechanical issues with the plane. The court started at 6 p.m. and could not deal with this file.

It was postponed throughout the week but there was a lack of time to proceed to the hearing. [ 8 ] Three different dates for the sentencing hearing were offered to the attorneys, dates on the very next week, but the defence was not available. [ 9 ] So, the hearing was then remanded to January 27, 2023, for either an application to stay the proceeding based on the delays or for the sentencing hearing. A motion for stay of proceeding was later filed by the accused. The case was postponed to today. MATTERS IN DISPUTE 1. How should the reasonableness of the delay be evaluated? (legal framework) 2.

What portion of the delay if any, should be considered as a discrete event? (Pandemic, shortage of writers, mechanical issues, sickness of the writer and unavailability of hotel room) 3. How should the delay between July 18, 2022, to September 13, 2022, be characterized? (Court cancellation) 4. Has the accused shown that the delay between his plea of guilt and the sentence is unreasonable?

Analysis 1. Legal Framework [ 10 ] The Supreme Court in R v. Jordan [2] did establish ceilings as when delays are presumed unreasonable. But these ceilings do not apply to the evaluation of reasonableness of a delay between a conviction and a sentence. [ 11 ] A five-month delay has been determined by the Ontario Court of Appeal in R c. Charles Charley [3] as being the reasonable post verdict delay. [ 12 ] But, in a recent decision from the Court of Appeal in Levesque Paquette c. R [4] , the approach stated in R v. Charles Charley was rejected.

A more flexible and modulated approach was taken by our Court of Appeal [5] . [ 13 ] The issue is whether the proceedings do drag on unduly. The presumption of innocence no longer applies and

section 11

b) of the Canadian Charter of Rights deploys differently as the context and protection are not the same. [ 14 ] This approach does not require the same level of scrutinization set out in R c. MacDougall [6] . Such method of evaluation of unreasonableness of the delay takes into consideration, among other criteria, the causes of the delays and the limits on institutional resources. [ 15 ] The Court of Appeal in Levesque Paquette c.

R [7] has yet confirmed if prejudice to the accused should be considered. [ 16 ] Using the more flexible approach or the MacDougall method, the delays caused by discrete events or by the defence’s action will be deducted from the net delay and will not be considered by the Court. 2. discrete event? cOVID-19 [ 17 ] On August 19, 2021, the court did order the production of a Presentence report and a Gladue report. But the Gladue report was not ready for the next scheduled date, February 2022.

It will be given to party only in October 2022. [ 18 ] Pandemic measures throughout 2020 and 2021 varied from total lock down to travelling restrictions to normality. [ 19 ] December 2021 and January 2022, the pandemic measures then prevailing in Nunavik were limiting activities as travelling and access restrictions were imposed by the Nunavik Regional Board of Health and Social Services Director of public health. [ 20 ] It is obvious that these measures had a great impact on the capacity and possibility for Gladue writers to gather the information needed for the reports.

It added to an already existing backlog and the production of the reports for detainees was prioritized. Pandemic is not the only reason for the backlog but still is relevant to the situation. [ 21 ] In R. v Jordan [8] , the landmark decision from the Supreme Court, exceptional circumstances are defined: [69] Exceptional circumstances 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. So long as they meet this definition, they will be considered exceptional. They need not meet a further hurdle of being rare or entirely uncommon. [ 22 ] As stated by this Court in other cases or by other tribunals [9] , the pandemic was outside the Crown’s and the judicial system’s control and could not reasonably have been foreseen. The effect of the pandemic on the judicial system was not reasonably avoidable.

The same can be said about Gladue reports and the delay to produce them. [ 23 ] The Court does consider that, in these circumstances, the postponement was caused, in part, by the pandemic situation in Nunavik. SHORTAGE OF GLADUE WRITERS [ 24 ] The Crown had no responsibility in the backlog of Gladue reports awaiting, their late productions or the shortage of qualified writers. [ 25 ] But in Robidoux c.

R [10] , the Court of Appeal added that an unforeseen or a reasonably unavoidable event should be outside the judicial system’s control which, according to the accused, would include the Gladue writers. [6] D’abord, un évènement distinct doit être imprévisible ou inévitable, non seulement pour le ministère public, mais également pour le système de justice dans son ensemble. [ 26 ] The evidence shows that additional resources were added to overcome the backlog with all the Gladue reports ordered and to

limit their delays of production. This already existing backlog grew bigger with the pandemic and the reduced number of qualified Gladue writers. [ 27 ] The become of Gladue writer, a candidate has to follow a 5-day workshop and then be supervised for a certain period before being able to conduct interviews with an accused and its family, to gather all the information to produce a report. [ 28 ] There are only a few persons that can give such training.

And only half of the few interested candidates will follow through after training. [ 29 ] The lack of qualified writer is in no way caused by insufficient funding from the state. Unexpected departures explain the shortage of writers. Some writers left voluntarily, one was let go. [ 30 ] Whether or not the Gladue writers should be considered as “fonctionnaire responsable de l’administration de la justice” is irrelevant to the issue at stake. The Court is not convinced but will not rule of its definition. But the actions taken to reduce further delay are pertinent.

The Court concludes that it is a discrete event and that it cannot be attributed to any of the participants. [ 31 ] Therefore, as there was no other date available before July 21, 2022, the entire delays from February 3, 2022, to July 13, 2022, will be considered as exceptional circumstances and will be deducted from the net delay. [ 32 ] The postponement from July 2022 to September 13, 2022, will be later addressed in this decision.

SICKNESS OF THE WRITER AND UNAVAILABILITY OF HOTEL ROOM [ 33 ] Then, after the July Court date, the assigned writer got sick therefore postponing the meetings and the production of the report to a later date. After she had to wait for hotel room to be available before coming to Kuujjuaq. This situation created the postponement from September 13, 2022, to October 24, 2022. [ 34 ] This delay will be considered as a discrete event. MECHANICAL ISSUES [ 35 ] The postponement from October 2022 to January 2023 is also a discrete event.

It was a mechanical issue with the Court’s plane that led to the court’s late arrival. It was clearly outside the Crown’s control and was not foreseen by them. [ 36 ] The Court and the Crown did try to remedy the delay emanating from this unfortunate circumstance, by trying to reschedule the hearing the following week. The Court was available all day on three different dates, but the defence was not. [ 37 ] According to the Court of Appeal in Robidoux c.

R [11] .: [7] (…) les actions prises par le ministère public pour réduire les délais attribuables à un évènement imprévisible ne sont pas les seules pertinentes (…) les fonctionnaires responsables de l’administration des tribunaux, les policiers, les avocats du ministère public, les inculpés et leurs avocats, de même que les juges. [ 38 ] Therefore, as there was no other date available before January 27, 2023, the delays will be considered as exceptional circumstances and will not be calculated in the net delay. 3.

COURT CANCELLATION [ 39 ] Now, dealing with the postponement from July 13, 2022, to September 13, 2022, where the court was cancelled due to unavailability of judicial resources. It is considered as institutional delay [12] . [ 40 ] The Court of Appeal in Robidoux c. R [13] came to the same conclusion.

Court cancellation cannot be considered as a discrete event when it is the lack of judicial resources that led to the postponement. [ 41 ] Although, in certain circumstances, as highlighted in that same decision, the unexpected closure of a court room could be characterized as exceptional circumstances, for example if caused by sudden illness of the judge, but it is not the case here. [ 42 ] But then, this delay can also be considered as exceptional circumstances.

The Gladue report was also not available in July 2022 because the previous writer was unable to find a hotel room so she could not travel to Nunavik to meet the accused and his family. [ 43 ] As this delay is no significant impact on the net delay, the Court will not decide on its characterization. 4. DELAYS [ 44 ] The Court concludes that the net delay is 251 days when deducting the discrete events. For this calculation, the court cancellation was considered as state caused. [ 45 ] Most of this delay was triggered by the needed time by the Gladue report writer to produce the report.

Because of the restrictions and travelling ban imposed by the Nunavik authorities, it was difficult to meet the accused and other offenders waiting for their reports. At one point, there was an important backlog with the production of Gladue reports therefore detainees’ files were prioritized. [ 46 ] A lack of qualified writers was also noted by the Court. But this lack is not caused by insufficient funding from the state. The unexpected departure of several writers is the reason for this shortage.

[ 47 ] Although the utility and quality of the information provided in a Gladue report are undeniable, the Gladue factors can be established in court through testimonial or documentary evidence. [ 48 ] In Aullaluk c R . [14] the Court of Appeal comes to the same conclusion especially when it does substantially delay decision- making. [ 49 ] The accused could have, by other means of evidence, provided the specific information regarding his situation. Especially as the defence had been advised by email of the important backlog with the production of Gladue report.

As said before, all actors have a role to play to avoid postponement including the accused and his lawyer. [ 50 ] Has the Defence shown the overall remaining delay is unreasonable? [ 51 ] The net delay is less than 9 months which is reasonable when reports are required by the court. The Court of Appeal in Levesque Paquette c R [15] do recognizance that the preparation of reports (here dangerous offender assessment) will command more delay that other sentencing procedures. [ 52 ] The evidence adduced does not convince the Court that the delay is unreasonable.

CONCLUSION [ 53 ] The motion to stay the proceedings is dismissed. __________________________________ MARIE-CHANTAL BRASSARD, J.C.Q. Me Daphnée Creighton Attorney for the Applicant Me Hannah Brais-Harvey Attorney for the Respondent Date of hearing: February 16, 2023