2017 QCCQ 5526, 2017 QCCQ 5526

Milford c. R. 2017 QCCQ 5526 JCO 051 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF MONTRÉAL Criminal Division No.: 500-01-109000-148 DATE: May 18, 2017 ______________________________________________________________________ PRESIDING: THE HONOURABLE SUZANNE COSTOM, J.C.Q. ______________________________________________________________________ André MILFORD Petitioner-Accused v. Her Majesty the Queen Respondent-Prosecutor ______________________________________________________________________ JUDGMENT on an Amended Motion for a Stay of Proceedings pursuant to

Article 11

b) of the Canadian Charter of Rights and Freedoms ______________________________________________________________________ INTRODUCTION [ 1 ] Petitioner is charged with exploitation, assault, assault with a weapon, uttering threats, sexual assault, breaking and entering, mischief and killing an animal. [ 2 ] The information was sworn on July 23, 2014. The end of the trial is forecast for August 25, 2017. Petitioner seeks a stay of proceedings on the basis of a violation of his right to be tried within a reasonable delay, protected by

section 11

b) of the Canadian Charter of Rights and Freedoms . THE NEW FRAMEWORK FOR EVALUATING PRETRIAL DELAY - R . v. Jordan [1] [ 3 ] Jordan instructs us that the first step in evaluating whether an accused’s 11

b) rights have been violated is to calculate the total delay between the laying of the charges and the real or anticipated conclusion of the trial [2] . [ 4 ] Next, any delay waived by the defence [3] , or caused solely by the conduct of the defence [4] , is to be subtracted from the total delay. [ 5 ] The central feature of the new framework is a ceiling beyond which delay is presumptively unreasonable.

In the case at hand, that is, a case going to trial in the provincial court after a preliminary inquiry, the presumptive ceiling is set at 30 months [5] . [ 6 ] If the total delay from the laying of the charge to the actual or anticipated end of trial (minus defence delay) exceeds the ceiling, then the delay is presumptively unreasonable . The burden then shifts to the Prosecution to demonstrate that the delay is reasonable in light of exceptional circumstances. There are two main categories of exceptional circumstances: discrete events and particularly complex cases [6] .

[ 7 ] For cases that were already in the system before the Supreme Court released its reasons in Jordan , there is a third exceptional circumstance: the “transitional exceptional circumstance” [7] . OVERVIEW OF PROCEEDINGS [ 8 ] Before applying the Jordan framework, it will be helpful to provide an overview of the proceedings in this case:

a) July 23, 2014: Swearing of the information and arraignment. Petitioner is detained. The bulk of the disclosure is provided.

b) July 25, 2014: Bail hearing. The Prosecution consents to Petitioner being released subject to signing an undertaking with conditions. The case is postponed pro forma .

c) November 11, 2014: Pro forma date. The preliminary inquiry is scheduled for February 25, 2015.

d) February 25, 2015: The preliminary inquiry does not proceed due to the absence of the lawyer handling the case for the DPCP. The case is put off pro forma .

e) March 13, 2015: The preliminary inquiry is rescheduled for May 27, 2015.

f) May 27, 2015: The preliminary inquiry takes place and Petitioner is ordered to stand trial. The case is put off pro forma .

g) August 6, 2015: Pro forma date. Another pro forma date is scheduled for September 24, 2015.

h) September 24, 2015: Pro forma date. Petitioner’s attorney is unable to attend court for personal reasons. Another pro forma date is scheduled for October 28, 2015.

i) October 28, 2015: Pro forma date. At the request of the defence, another pro forma date is scheduled for December 2, 2015.

j) December 2, 2015: Pro forma date. A case management conference is scheduled for March 23, 2016.

k) March 23, 2016: Case management conference. The defence had not received a copy of an expert report. The case management conference is continued to April 19, 2016.

l) April 19, 2016: The case management conference is completed. The trial is scheduled for February 26, 27 and 28, 2018.

m) November 29, 2016: Petitioner is arrested in relation to another unrelated offence. The Prosecution presents a motion pursuant to

article 524 of the Criminal Code requesting that Petitioner’s undertaking be cancelled and that he be detained until the end of the proceedings. The motion is granted. Petitioner is also detained in relation to the new charge laid against him in the unrelated matter.

n) February 2, 2017: The file is placed on the docket by Petitioner and he deposits a Jordan motion. The Prosecution suggests that the trial dates be advanced. The parties are able to move up the trial by six months to August 23, 24 and 25, 2017.

o) March 31, 2017: Petitioner pleads guilty in the other file and is sentenced to one day in jail followed by a probation for a period of three years. Since that time, he has been detained only in the present case.

APPLICATION OF THE NEW FRAMEWORK [ 9 ] The total time between the laying of the charges on July 23, 2014 and the anticipated end of Petitioner’s trial on August 25, 2017 is 3 years, 1 month and 2 days, or approximately 37 months. [ 10 ] In his Motion, Petitioner states that none of this delay should be attributed to the defence, whether because of waiver or otherwise. However, during the hearing, Petitioner acknowledged that the period between September 24, 2015 and December 2, 2015 should indeed be subtracted from the total delay in that it was caused by or can be attributed to the defence.

Once this time (2 months and 9 days) has been subtracted, the net delay according to Petitioner is approximately 34 months and 3 weeks. [ 11 ] Respondent, on the other hand, calculates the net delay at 30 months and 12 days. She submits that the following additional periods should be subtracted from the total delay: • From February 25, 2015 to March 13, 2015 (16 days). [ 12 ] On February 25, 2015, the parties were in court for Petitioner’s preliminary inquiry. Three hours had been set aside.

However, Respondent was unexpectedly unable to proceed as the specific Prosecutor who had been handling the file and who had prepared for the preliminary inquiry was absent. The court record indicates that this Prosecutor was sick [8] , however Petitioner advised the Court during his oral pleadings that this may be inaccurate as the reason for the Prosecutor’s absence was not actually explained.

He is therefore not willing to concede that her absence constitutes an exceptional circumstance. • From May 27, 2015 to August 6, 2015 (71 days or 2 months and 10 days) and from August 6, 2015 until September 24, 2015 (49 days or 1 month and 18 days). [ 13 ] Petitioner’s preliminary inquiry was held on May 27, 2015. At the end of the inquiry, Petitioner was ordered to stand trial. The defence then requested that the case be postponed pro forma . In response, the presiding judge sensitized the parties to the fact that trial dates were very far off.

This was clearly said in order to encourage the parties to set a trial date immediately. In response to the judge’s comments, the Prosecutor intervened and said “ On va aller avec un petit pro forma au 4.07 ”. The defence then said “ Oui, oui, un petit pro forma au 4.07, Monsieur le juge ” [9] . The case was therefore scheduled pro forma for August 6, 2015. On August 6, 2015, the case was postponed pro forma again until September 24, 2015.

The transcript indicates that this was a joint request [10] . [ 14 ] The Court does not believe it is necessary to determine whether these time frames should in fact be subtracted from the total delay.

An examination of these periods will however become relevant to the Court’s discussion of the transitional exceptional circumstance. [ 15 ] For now, it is sufficient to note that Respondent concedes that the presumptive ceiling of 30 months has been passed, and it therefore bears the burden of proving that the delay is reasonable in light of exceptional circumstances. [ 16 ] Neither party has invoked any exceptional circumstances which would justify the delay.

Similarly, nobody argues that this is a particularly complex case. [ 17 ] However, because Petitioner was charged before Jordan was released, this Court must determine whether the transitional exceptional circumstance applies. The petitioner says “no”, and the respondent says “yes”. This is the only real issue. THE TRANSITIONAL EXCEPTIONAL CIRCUMSTANCE [ 18 ] The transitional exceptional circumstance can apply in two situations. The first is when “the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed” [11] .

Moreover, it may also justify an otherwise unreasonable delay “because the case is of moderate complexity in a jurisdiction with significant institutional delay

problems” [12] . [ 19 ] The transitional exceptional circumstance is justified because it would not be fair “to strictly judge participants in the criminal justice system against standards of which they had no notice”. Furthermore, the Supreme Court insisted that “the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov ” [13] . [ 20 ] In the case at hand, while the region of Montréal is certainly one of the jurisdictions confronted with significant institutional delay problems, the Court does not consider the case to be moderately complex.

There are indeed multiple counts, and the charges stem over a five-year period. There is also an expert who will be testifying for the Prosecution on a particular point, subject to an admission that may be made by the defence.

However, the Court understands from the submissions of the parties that this is essentially a case where contradictory versions will be put forward by the complainant and the accused, and the main issue will be credibility. [ 21 ] The Court must therefore examine if the first prong of the transitional exceptional measure applies in that Respondent has met the burden of proving that the delay is justified based on “the parties’ reasonable reliance on the law as it previously existed”. [ 22 ] Prior to the release of Jordan , the framework used to evaluate the reasonableness of pretrial delay was that set out in the case of Morin [14] .

This approach was summarized as follows by the Supreme Court: The Morin framework requires courts to balance four factors in determining whether a breach of s. 11 (

b) has occurred: (1) the length of the delay; (2) defence waiver; (3) the reasons for the delay, including the inherent needs of the case, defence delay, Crown delay, institutional delay, and other reasons for delay; and (4) prejudice to the accused’s interests in liberty, security of the person, and a fair trial. Prejudice can be either actual or inferred from the length of the delay.

Institutional delay in particular is assessed against a set of guidelines developed by this Court in Morin: eight to ten months in the provincial court, and a further six to eight months after committal for trial in the superior court. [15] [ 23 ] In determining whether or not the transitional exceptional circumstance applies, the court must adopt a flexible and contextual approach [16] . Does the Transitional Exceptional Circumstance Apply? [ 24 ] The Court does not consider that it would be helpful to dissect the delays as was generally done in applying Morin .

A rapid overview of the proceedings reveals that the most significant portion of the net delay (be it 34 months and 3 weeks, as pleaded by Petitioner, or 30 months and 12 days, as pleaded by Respondent), is comprised essentially of what was referred to as “institutional delay” pursuant to Morin . [ 25 ] Indeed, on April 19, 2016, the parties scheduled the trial for the 26, 27 and 28 of February 2018. At the time, the presiding judge made the following comment: Alors on arrive au bout de l’exercice et c’est un procès qui va durer trois (3) jours.

Vous êtes en liberté, alors vous n’êtes pas sur la liste de priorité, parce qu’on donne priorité aux gens qui sont détenus. [17] This delay of 22 months and 10 days in and of itself surpasses the guidelines set out in Morin [18] . [ 26 ] On February 3, 2017, Petitioner put this case on the docket in order to deposit his original Jordan motion [19] . At that time, Respondent suggested to Petitioner that they attempt to advance the trial dates, and the case was in fact rescheduled to August 23, 24 and 25, 2017.

However, even with the advancement of the trial dates, the institutional delay between the case management conference, at which time the parties were ready to

schedule the trial date, and the projected end of Petitioner’s trial, is 16 months. This too significantly exceeds the guideline provided in Morin [20] . [ 27 ] But the analysis does not end there. As pointed out in Palma [21] , the parameters outlined by the Supreme Court in Morin were always intended to be applied taking into account local conditions and changing circumstances [22] . [ 28 ] In fact, in the Montréal region, institutional delays like the one in this case were not at all exceptional.

[ 29 ] It goes without saying that every case must be judged on its own merits, but in determining whether or not the transitory exceptional measure applies in this matter, the Court must keep in mind the teachings of the Supreme Court to the effect that the transitional exceptional measure exists in order to ensure that an extraordinary number of charges are not stayed because of an “abrupt change in the law” [23] .

The Supreme Court held that “(s)uch swift and drastic consequences risk undermining the integrity of the administration of justice” [24] . [ 30 ] There is nothing in particular which distinguishes this file from the panoply of other files that were making their way through the criminal justice system in Montréal prior to the release of Jordan . Everybody involved in this case acted in conformity with the law, as it existed at the time. [ 31 ] Petitioner pleaded that he did everything in his power to move the case along quickly.

For example, on May 27, 2015, he avoided the need to continue the preliminary inquiry to another date by agreeing to be committed to trial on all counts. On the other hand, four pro forma dates and two case management dates were scheduled following the termination of the preliminary inquiry, prior to trial dates being scheduled. As such, instead of scheduling the trial on May 27, 2015, it was scheduled almost a year later on April 19, 2016. [ 32 ] The defence has acknowledged that it is responsible for at least some of this delay [25] .

As for the balance of the time between the end of the preliminary inquiry and April 19, 2016, this Court finds that both parties were content to let the case march along from date to date, from one “ petit pro forma ” [26] to the next, despite being cautioned by the judge that trial dates were a long way off. [ 33 ] Furthermore, when the trial was finally scheduled, nobody reacted when the judge commented about how far off the date was [27] . In some contexts, this may be viewed as mere resignation to reality.

But in the circumstances of this case, the Court finds that all parties were satisfied with the pace at which the proceedings were progressing. Indeed, to the extent that this case is an example of the culture of complacency which the Supreme Court sought to put an end to by introducing its radical new approach in Jordan , it was one that was readily embraced by all parties.

This is not meant as a reproach, but as an illustration of the parties’ “reasonable reliance on the law” as it previously existed. [ 34 ] Petitioner urged the Court to follow the case of Williamson [28] , where the Supreme Court of Canada upheld a stay of proceedings entered by the Court of Appeal in a case where the net delay was 34 months. However, the facts in the present case differ greatly from those in Williamson , where “the Crown’s lack of initiative (was) in contrast to Mr.

Williamson’s repeated efforts to expedite the proceedings” [29] . [ 35 ] In fact, in the case at hand, as soon as Respondent was made aware that delay was an issue, it took proactive steps to advance the trial dates. [ 36 ] Petitioner also insisted on the prejudice he suffered on account of the long delay in this matter.

Whereas pursuant to Jordan , neither prejudice nor the seriousness of the charges are relevant once the presumptive ceiling has been breached [30] , the Supreme Court recognized that “prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework” [31] . [ 37 ] Petitioner referred to the pre-charge delay of 8 months and 25 days as relevant in assessing the prejudice he has suffered.

However, when he testified in the context of the voir dire , he made it clear that his ability to defend himself has not been affected by either the pre or post-charge delay. He referred to pictures and other items as well as the names of witnesses which he gave to his lawyer in order to prepare his defence. [ 38 ] During his testimony, Petitioner also pointed to his inability to follow through with his plan to take over his father’s taxi licence, or to even renew the “packet number” required to drive a taxi, on account of his pending case.

The Court finds that this prejudice stems from the charges themselves, as opposed to the delay in getting to trial. In addition, Petitioner’s conviction in the other matter creates an obstacle to him continuing to work in the taxi business. This is separate and apart from any prejudice stemming from the current proceedings, or the delay in getting to trial.

[ 39 ] Petitioner has been detained since November 29, 2016. He spoke of the hardship he is suffering in virtue of his detention since November 29, 2016. He spoke of the financial hardship caused by his detention, as well as the anxiety and stress he is experiencing because of conditions in the prison. [ 40 ] The Court acknowledges that the delay is indeed creating prejudice for Petitioner in this regard. However, it must be recalled that he was detained in relation to other charges until March 31, 2017.

Once the end of his trial has been reached, Petitioner will have been detained for five months in this matter alone. [ 41 ] Petitioner is presumed innocent and the Court takes the prejudice suffered during these five months very seriously. However, this in itself is not enough for the Court to conclude that the delay is unreasonable. The Court remains convinced that the parties acted reasonably, in conformity with the law as it existed prior to Jordan . [ 42 ] Finally, a brief note about the seriousness of the offence.

As stated above [32] , this was a relevant factor in the Morin analysis where the Court referred to “a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law [33] ”. Petitioner is facing eight charges, the most serious of which is punishable by imprisonment for life [34] , and another which is punishable by a mandatory minimum term of imprisonment for four years [35] .

This factor thus favours the continuation of the proceedings, in order that the charges be adjudicated on their merits. [ 43 ] As stated by the Supreme Court, the Jordan ruling “should not automatically transform what would previously have been considered a reasonable delay into an unreasonable one” [36] . [ 44 ] In sum, regardless of whose calculations we accept, the net delay in this case does not exceed the ceiling set out in Jordan in a significant manner. Furthermore, the delay cannot be attributed to “repeated mistakes or missteps by the Crown” [37] .

Until the presentation of this Motion, Petitioner did not make any particular efforts to move the file forward quickly. As soon as this Motion was deposited, Respondent reacted promptly and succeeded in carving six months off the delay. [ 45 ] Respondent has therefore succeeded in convincing the Court that the transitional exceptional circumstance applies. FOR THESE REASONS, THE COURT DISMISSSES the Amended Motion for a Stay of Proceedings. __________________________________ SUZANNE COSTOM, J.C.Q.

Me Vincent Rose Attorney for Petitioner-Accused Me Audrey Simard and Me Juliette Lucas Attorneys for Respondent-Prosecutor Date of hearing: April 19, 2017