2020 QCCQ 8889, 2020 QCCQ 8889

R. c. McKenzie-Fletcher 2020 QCCQ 8889 COURT OF QUEBEC Criminal & Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL N° : 500-01-175880-183 DATE : December 22 nd 2020 ______________________________________________________________________ BEFORE THE HONOURABLE DENNIS GALIATSATOS, J.C.Q. ______________________________________________________________________ HER MAJESTY THE QUEEN Prosecution – Respondent v. KONEIL MCKENZIE-FLETCHER Accused – Applicant ______________________________________________________________________ JUDGMENT ON THE APPLICATION TO STAY THE PROCEEDINGS DUE TO UNREASONABLE DELAY ( s. 11(

b) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ INTRODUCTION [ 1 ] The accused brings a s. 11(

b) Charter application alleging a violation of his right to be tried within a reasonable time and seeking a stay of proceedings. [ 2 ] He is charged with possession of narcotics for the purpose of trafficking (s. 5(2)(3)(

a) C.D.S.A. ), possession of a loaded restricted firearm (s. 95(2)(1)(

i) C.C. ) and presence in a vehicle in which he knew there was a restricted firearm (s. 94(1)(2)(

a) C.C. ). [ 3 ] The alleged events occurred in August of 2018. The weapon and drugs were found in a vehicle driven by the accused. Briefly summarized, after randomly checking the licence plate number on their on-board computer database, the officers received information suggesting that the car was stolen. Within minutes, the police intercepted the vehicle and arrested the accused for car theft.

The subsequent search of the car revealed a significant quantity of crack cocaine as well as a loaded handgun. [ 4 ] In a previous interlocutory decision pertaining to an adjournment request, [1] this Court already described the case’s procedural history as atypical and “far from the model of efficiency”.

In particular, it was troubled by the inexplicable absence of the police witness last summer, which turned out to be the result of a deplorably negligent oversight on her part. [ 5 ] On November 5 th 2020, the Court dismissed the defence’s application to exclude the evidence on ss. 8 and 9 Charter grounds. [2] [ 6 ] The anticipated end of this trial [3] is scheduled for January 20 th 2021. The total delay from charge-to-completion will be 29 months and 14 days. Hence, before any subtraction and regardless of any disagreement about the qualification of certain periods, it is inescapable that the ultimate s. 11 (

b) analysis will proceed on the basis of a below-ceiling standard. [ 7 ] The issue at bar is therefore whether or not this file is one of the “rare and clear” cases warranting a stay of proceedings below the 30-month benchmark for indictable offences. TABLE OF CONTENTS FACTUAL OVERVIEW .. 3 1- The history of the proceedings . 3

a) From the arrest to the preliminary inquiry . 4

b) The preliminary inquiry . 5

c) Following committal to trial 5

d) The trial 6 2- Chart outlining the total delay . 8 POSITIONS OF THE PARTIES . 12 ANALYSIS . 13 1- The Jordan framework in assessing delays in criminal proceedings . 13 2- Applying the Jordan principles to the case at bar . 15

a) The agreement between the parties about the qualification of certain delays does not bind the Court 15

b) Defence delay . 16

i) The short successive delaying of the bail hearing, the preliminary inquiry and the bail review hearing 17 ii) The delay caused by waiting for the transcript of the preliminary inquiry . 18

c) Exceptional circumstances – discrete events . 22

d) Deliberation time for the Charter motion to exclude the evidence . 25

e) Calculating the remaining delay . 27

f) The late disclosure . 27

i) What was requested and what was provided . 28 ii) To what extent was the disclosure inadequate and what consequences did it generate? . 30

g) The delay falls below the presumptive ceiling: the accused’s burden . 33

i) Meaningful steps demonstrating a sustained effort to expedite the proceedings . 35 ii) Did the case take markedly longer than it should have? . 36 CONCLUSION . 43 FACTUAL OVERVIEW 1- The history of the proceedings [ 8 ] Reviewing the entire chronology of these proceedings is a tedious but necessary task. For ease of reference, an illustrative chart is provided below. [ 9 ] The parties summarized the procedural history of the case during the submissions on consent. It appears that there is little dispute with respect to the factual background of the proceedings, which are quite unique.

a) From the arrest to the preliminary inquiry [ 10 ] The accused was arrested on August 4 th 2018 and kept detained by the police. [ 11 ] On August 6 th 2018, he was formally charged and made his first appearance in custody. [ 12 ] The matter was adjourned three times in order to allow the defence to better prepare for the bail hearing, [4] which was ultimately held on August 20 th 2018 and resulted in an order of detention. [ 13 ] The file was then adjourned pro forma to September 21 st 2018. On that date, the defence made its election and requested a preliminary inquiry at the earliest date possible.

Despite the fact that the assigned prosecutor was not available, the date of October 29 th 2018 was scheduled.

[ 14 ] However, five days before the scheduled date, [5] the Crown made an adjournment request on the basis that officer Soucy was on vacation. [6] The defence did not contest the request. The adjournment was therefore granted, the date of October 29 th was cancelled and the preliminary inquiry was postponed to December 21 st 2018. [ 15 ] Alas, once again, shortly before the second scheduled preliminary inquiry (within the week prior [7] ), the Crown made another adjournment request on the basis that officer Delorme was unavailable as she was on sick leave [8] .

Although no details were given to the Court about her condition, her return was anticipated for December 22 nd 2018. The possibility existed that the preliminary inquiry start on December 21 st 2018, subject to it being continued at a later date for completion. However, the judge designated to hear the matter [9] advised that he would be absent the entire beginning of the month of January.

As such, should he begin the inquiry on December 21 st , it would have to be continued in late January of 2019. [ 16 ] Faced with such a situation and hoping to complete the inquiry earlier, the defence chose to consent to the Crown’s adjournment request altogether and simply obtain an earlier date in January where the matter could start and finish. Thus, the adjournment was granted and the third preliminary inquiry date was set for January 9 th 2019.

b) The preliminary inquiry [ 17 ] The preliminary inquiry proceeded on January 9 th 2019 and finished on that same day. Since the Crown witnesses testified in French, consecutive translation to English was conducted for the benefit of the accused. Mr. McKenzie-Fletcher was committed to trial. [ 18 ] At the end of the hearing, the defence announced an application pursuant to s. 523(2)(

b) C.C. , seeking to be released pending his trial.

c) Following committal to trial [ 19 ] The matter was adjourned to January 18 th 2019. On that date, at the request of the accused, the Court ordered a transcript of the preliminary inquiry. The bail review hearing was scheduled for March 11 th 2019. In the meantime, soon thereafter on February 12 th , the judge advised the parties that he was unavailable on that date after all. Thus, the bail review was rescheduled for March 25 th 2019. [ 20 ] The review hearing proceeded on March 25 th . Eleven days later, on April 5 th 2019, Dupras J. granted the application and ordered the applicant’s release.

The case was adjourned to April 8 th 2019 to allow for a land telephone line to be installed at the address where the accused would be residing, as per his release conditions. On that date, the designated Crown prosecutor was out of town and unavailable. Thus, the case was adjourned to May 8 th 2019. [ 21 ] On May 8 th 2019, the accused expressed his desire to set the matter to trial. He also gave notice that he would be presenting a Charter motion for the exclusion of evidence. Following a judicial pre-trial in chambers, the parties were authorized to set a one-day voir dire for the Charter motion.

The rest of the

schedule would be set by the presiding trial judge. [ 22 ] The voir dire ( i.e. , the start of the trial), was scheduled for September 5 th 2019. [ 23 ] In the course of the summer, defence counsel was informed by the Court Services Office that since the preliminary hearing proceeded in English, the delay for the stenographer notes could be as long as one year. Instead of making alternate arrangements, the defence chose to request an adjournment of the trial.

On August 12 th 2019, the accused made a formal application to postpone the trial, alleging that the transcript was essential to its preparation of the trial. The Crown consented to the adjournment. The date of September 5 th 2019 was kept, but converted into an administrative pro forma hearing. [ 24 ] On September 5 th 2019, the matter was again adjourned pro forma to September 26 th 2019, as defence counsel was unavailable due to an unrelated incident (of a criminal nature) having occurred at her domicile. [ 25 ] On September 26 th 2019, a focus hearing was held before case-management judge St-Onge.

The trial was set to proceed on January 21 st , 22 nd and 30 th 2020.

d) The trial [ 26 ] The trial began on January 21 st 2020. Officer Soucy testified. [ 27 ] On the next day, officer Delorme testified in chief in the morning. Her cross-examination began at 11:05 am and lasted only four minutes before it was suspended for reasons unrelated to the officer. The witness was asked if she had in her possession a specific printout from the M-IRIS police database.

Delorme readily answered yes, took a document out of a folder and offered to show it to counsel. [10] [ 28 ] At that moment, defence counsel sought a recess on the basis that said document had not been disclosed, despite an explicit written disclosure request by the defence on November 29 th 2019. [11] Counsel needed time to review the document, adjust her impending cross-examination, crosscheck elements in her own file and possibly pursue additional inquiries. [ 29 ] Despite a first brief recess and the extended lunch break, defence counsel was unable to continue Delorme’s cross-examination.

According to counsel, the late disclosure pertained to issues that went to the heart of the Charter motion, namely the grounds for the

warrantless arrest and continued post-arrest detention of the accused. Moreover, counsel announced that she would possibly make additional disclosure requests as a result of the day’s discoveries. In the course of the afternoon, it was scarcely suggested that the lead investigator had inaccurately or inadequately responded to the previous disclosure requests. Since no formal Charter motion was before the Court, I simply noted that it was unnecessary for me to make any factual findings on that topic.

For that same reason, no hearing was held and the investigator was never afforded an opportunity to explain his perception of what had occurred. [ 30 ] Incidentally, during the lunch break, at the request of both attorneys, officer Delorme made various inquires with the police department’s liaison office and obtained several documents that were disclosed to the defence. One of them was later filed as an exhibit at trial. [12] [ 31 ] By the end of the day on January 22 nd 2020, it became clear that Delorme’s cross-examination would take place at a later date.

The parties were convened for January 30 th 2020. [ 32 ] Alas, Delorme’s cross-examination did not proceed on January 30 th 2020 either. [ 33 ] Instead, the outstanding disclosure situation led to several further delays. Each time, the matter was adjourned pro forma until the parties were finally ready to resume the trial. [ 34 ] On January 27 th 2020, the Court was informed in writing that the defence had in fact made a supplemental disclosure request as a result of the newly provided materials. In an email, [13] the parties “agreed that defence was entitled to additional disclosure”.

However, the Crown needed additional delay to obtain the answers sought. [ 35 ] On January 30 th 2020, at the pro forma hearing, the Crown explained that it had made various requests to the officers in charge of the M-IRIS database, stressing the urgency of the matter to them. Said officers undertook to “process the requests quickly”. When the Court asked what “quickly” meant, the Crown responded that it would likely be “a matter of days”.

The case was adjourned to February 12 th 2020. [ 36 ] On February 12 th 2020, at the pro forma hearing, the Crown announced that the requests were still pending, even though he expected them to have been dealt with by now. He explained that some aspects of the requests were more problematic than others, since they potentially raised issues of investigative technique privilege. He reiterated that the police was aware of the pressing deadlines and the fact that the trial was being held in abeyance. When the Court asked for a timeline in which the items were expected to be provided, the Crown could not provide one.

The Court expressed its dissatisfaction with the speed at which these matters were advancing. The matter was continued to February 24 th 2020. [ 37 ] On February 24 th 2020, the Crown took position. The police had provided answers for two of the 10 questions asked by the defence. For the 8 outstanding issues, the Crown formally objected to their disclosure on grounds of relevance and/or privilege. The new disclosure was received by the defence that morning.

Defence counsel needed time to review the documents and assess whether she would litigate the 8 outstanding items. [ 38 ] Finally, on March 12 th 2020, the defence confirmed that it would not seek further disclosure by way of a Charter motion. As such, the parties were ready to

schedule the third and final day of the original Charter voir dire , in which officer Delorme would be cross-examined and the submissions would be heard. The earliest available date was June 30 th 2020. [ 39 ] On the morning of June 30 th 2020, the lawyers were ready to proceed. However, for some unexplained reason, officer Delorme was absent and could not be contacted, despite numerous attempts by the investigator throughout the morning. Said attempts are listed in detail in this Court’s July 2 nd interlocutory decision. [14] The witness had been duly assigned in March, well before the trial date.

On the day of the hearing, she was not answering her phone and the investigator sent her text messages, as well as an Instagram message, and left messages on her answering machine, all to no avail. The officer’s station sergeant confirmed that Delorme knew the trial date and was aware of the file’s importance. He was quite surprised by her absence, noting that it was out of character for her to miss a court date. [ 40 ] Shortly after the matter was adjourned, the Crown received news from the witness. She had been in the process of moving and she had completely forgotten about the court date.

During the moving process, she did not have her cellular phone on her person. On July 2 nd 2020, officer Delorme attended Court with a look on her face that could be described as apologetic, mortified and embarrassed. The Court refused to hear from her. [ 41 ] The Court adjourned the trial to September 1 st 2020. [ 42 ] Four days before the trial date, a serious health-related emergency involving two family members of Crown counsel arose. The prosecution notified the Court that it would need to request another adjournment until the health situation stabilized. The defence did not contest the request.

Thus, the case was adjourned to October 7 th 2020, at which time officer Delorme’s cross-examination concluded and the arguments were heard on the Charter motion. The Court reserved judgment until November 5 th 2020. [ 43 ] On November 5 th 2020, the Court dismissed the Charter motion. The defence announced its intention to file a Jordan application. In the meantime, the Court provisionally set the next trial date to January 20 th 2021, in the event that the Crown would survive the s. 11 (

b) application. 2- Chart outlining the total delay

[ 44 ] The proceedings can be broken down as follows. For reasons explained in the following pages, the blocks highlighted in red have been assigned as “defence delay” and the blocks highlighted in blue are assigned to “discrete events” constituting “exceptional circumstances”: Date Stage Delay Description / details / comments 2018-08-04 Arrest n/a n/a 2018-08-06 First appearance --- -Accused formally charged. -First appearance, in custody. -Matter adjourned to August 8 th 2018 for bail hearing. 2018-08-08 Bail hearing 2 days -Bail hearing. -Does not proceed.

Defence requires more time to prepare for hearing. 2018-08-10 Bail hearing 2 days -Bail hearing. -Does not proceed. Defence requires more time to prepare for hearing. 2018-08-14 Bail hearing 4 days -Bail hearing. -Does not proceed. Defence requires more time to prepare for hearing. 2018-08-20 Bail hearing 6 days -Bail hearing proceeds. -The judge orders the pre-trial detention of the accused. -When the judge renders his decision, it is quite late in the day. For that reason, the preliminary hearing is not set right away.

Instead, the matter is adjourned pro forma to September 21 st 2018. 2018-09-21 Pro forma hearing 1 day -The defence makes it election and requests a preliminary inquiry. The earliest date possible is reserved, namely October 29 th 2018, even though designated Crown counsel will be unavailable. 31 days 2018-10-29 Initial date for the preliminary inquiry -in the meantime, Crown request to adjourn the first preliminary inquiry 32 days -The Crown makes a request to adjourn the preliminary inquiry, since a key police witness is on vacation. -Request granted.

Date of October 29 th cancelled. -New preliminary inquiry date scheduled for December 21 st 2018.

2018-12-21 Second scheduled date for the preliminary inquiry -Crown request to adjourn the second preliminary inquiry date 53 days -The Crown makes a request to adjourn the preliminary inquiry, since a different key police witness is on sick leave. -To avoid the possibility of starting the inquiry in December and completing it in late January (due to scheduling issues pertaining to the designated judge), the defence instead consents to the adjournment and seeks an earlier date. -The preliminary inquiry is scheduled to proceed on January 9 th 2019. 2019-01-09 Preliminary inquiry 19 days -Preliminary inquiry proceeds. -The accused is ordered to stand trial at the very end of the day. [15] -The defence ponders a request under s. 523(2) (

b) C.C. to be released pending his trial and the matter is postponed to the following week in order to make “verifications”. -The matter is adjourned to January 18 th 2019. 2019-01-18 Pro forma hearing while awaiting the bail review application 9 days -Judge orders the preliminary inquiry transcript at the request of the defence. -s. 523 hearing set for March 11 th 2019. -However, in the meantime, the judge advises that he will be unavailable.

The matter is therefore rescheduled to March 25 th 2019. 2019-03-25 s. 523 C.C. bail review hearing 66 days -The review hearing proceeds. -The judge takes the matter under advisement. 2019-04-05 s. 523 C.C. decision 11 days -Decision: the accused is released on bail. -A short delay is needed in order for a traditional land telephone line to be installed where the accused will be residing, as per the terms of his conditions. 2019-04-08 Pro forma 3 days -M e Ardeneus, the designated prosecutor, is out of town and unavailable. -The matter is adjourned pro forma to May 8 th 2019. 2019-05-08 Pro forma 30 days -The accused asks to set to trial. -The defence announces that it will present a Charter motion seeking the exclusion of evidence. -A case-management judge authorizes a full day hearing for the voir dire . -The voir dire ( i.e. the start of the trial), is scheduled for September 5 th 2019.

2019-08-12 Defence request to adjourn the trial 96 days -Since the transcript of the preliminary inquiry is still not ready, the accused requests to adjourn the trial, claiming that said transcript was essential to his preparation of his trial. -The Crown does not challenge the application. -The trial date is cancelled. -The date of September 5 th 2019 is kept, albeit as an administrative pro forma hearing only. 2019-09-05 Originally set trial date, converted to pro forma hearing 24 days -On this day, defence counsel is unable to proceed.

She is unavailable due to an incident of a criminal nature having occurred at her home. -The matter is adjourned to September 26 th . 2019-09-26 Pro forma 21 days -Case-management conference held. -Trial set to January 21 st , 22 nd and 30 th 2020. 2020-01-16 2020-01-17 Crown request to adjourn the trial becomes moot; withdrawn n/a (no impact on delay) -The Crown originally made a request to adjourn the trial on the basis that the arresting officer was on maternity leave. After making verifications at the request of the Court, it is determined that the officer is available to testify, despite being on leave.

The request is therefore withdrawn as moot. 2020-01-21 The trial begins Day #1 117 days -Officer Soucy testifies and finishes. 2020-01-22 Trial day #2 1 day -Officer Delorme testifies in chief. -Her cross-examination is interrupted by what appears to be new disclosure.

Moreover, the defence alleges that the very items that the officer has in her possession had been requested in the past, but the Police Service had asserted that they did not exist. -This new disclosure spawns additional disclosure requests. 2020-01-27 2020-01-30 2020-02-12 The trial is suspended while awaiting the Crown’s position on the new disclosure requests 21 days -The trial is adjourned and suspended while the Crown seeks to take position on the new disclosure requests.

2020-02-24 The trial is suspended while awaiting the Crown’s position on the new disclosure requests 12 days -The Crown takes position.

From the total 10 new requested items by the defence, the prosecution has agreed to provide answers for two of the questions. -For the 8 remaining issues, the Crown refuses disclosure, invoking privilege and/or lack of relevance. -New disclosure is provided to the defence on that morning. -The case is adjourned to March 12 th 2020 to allow the defence to review the disclosed documents. 2020-03-12 The trial is suspended while the defence reviews the newly disclosed materials 26 days -The defence announces that it will not pursue a Charter remedy to obtain the items that were refused by the Crown. -Instead, the continuation of the trial is set for June 30 th 2020. 2020-06-30 Trial day #3 110 days -Officer Delorme is inexplicably absent, despite being duly summoned to testify. -Various unsuccessful attempts are made to contact or locate her. -The matter is adjourned to July 2 nd 2020. 2020-07-02 The Court grants the Crown’s adjournment request 2 days -The Court grants the Crown’s adjournment request. -The trial is continued to September 1 st 2020 for the conclusion of the Charter voir dire . 2020-09-01 Crown request to adjourn the trial due to medical emergency 61 days -Health emergency involving two of Crown counsel’s family members arises, forcing an adjournment. 2020-10-07 Trial day #3 proceeds 36 days -The voir dire concludes. -The Court reserves judgment until November 5 th 2020. 2020-11-05 Decision on the Charter application to exclude evidence 29 days - Charter application dismissed. -

Section 11(

b) Charter motion announced. -Provisionally, the next trial date is set to January 20 th 2021, should the Crown survive the Jordan application. 2021-01-20 Projected end of the trial 76 days -Potential impending trial day #4. POSITIONS OF THE PARTIES [ 45 ] The accused contends that nearly all of the delay in the case at bar is attributable to the State. More specifically, unlike most cases, the problems were not caused by the lack of institutional resources. Quite the contrary: each time the matter was set to preliminary

inquiry, set to trial or adjourned mid-trial, the following date was remarkably quick. Each time, the defence accepted the proposed dates. As such, the Court of Quebec dockets were both efficient and accommodating to the defence. [ 46 ] This reveals that the situation we find ourselves in is entirely the fault of the Crown and the police. [ 47 ] The defence argues that it acted reasonably and expeditiously albeit not perfectly. From early on, it voiced its concerns about the mounting delays on the record.

In the accused’s view, the multiple Crown adjournments, the unavailability of the transcript, the deficient and slow disclosure and the police officer’s inexcusable absence at the trial caused an unreasonable delay which markedly exceeds what was reasonably appropriate for this case. [ 48 ] Mr.

McKenzie-Fletcher further argues that since the Jordan decision in 2016, there was a significant increase in the number of judicial appointments in Quebec, such that the Court of Quebec now has 15 more active judges than it did four years ago, many of which were assigned to the Criminal Division in the judicial district of Montreal. [16] Thus, argues the defence, since the institutional reality is different today than it was in 2016, it is no longer appropriate to see the 30-month ceiling as a benchmark.

Instead, we should expect far shorter delays in the district of Montreal, as a matter of normal practice. [ 49 ] The Crown responds that the delay is reasonable. Although counsel acknowledges that the defence did not set wasteful pro forma hearings, he still gives various examples of instances where the defence lacked a sense of urgency. As for the unexpected delays encountered throughout the proceedings, while they were unfortunate, it is a normal occurrence in the lifespan of a criminal matter for adjournments to happen from time to time.

Ultimately, according to him, the case has not taken markedly longer than it should have in the circumstances. ANALYSIS 1- The Jordan framework in assessing delays in criminal proceedings [ 50 ] In R. v. Jordan [17] and its sister cases R. v. Williamson [18] and R. v. Cody , [19] the Supreme Court of Canada established an entirely new framework to be applied where a breach of s. 11(

b) of the Charter is alleged. These decisions impressed upon all the participants in the justice system (the prosecution, the defence and the judiciary) the need to rethink our old traditions and to proactively find ways to expedite the criminal process. The message sent by the highest Court of the Land was loud, pressing and urgent. Moreover, the call to action was not limited to simply ensuring that the State hire more prosecutors and that the police be more efficient in meeting its disclosure obligations. [20] [ 51 ] Something far more fundamental was contemplated.

A shift in the culture was long overdue. [ 52 ] Under the new regime, ceilings that provide for presumptive time periods within which an accused must be brought to trial are central to the framework (in the case at bar, a ceiling of 30 months for cases tried before a judge sitting alone following a preliminary inquiry). [ 53 ] The presumptive ceilings are central to the reformulation of the s. 11(

b) analysis accomplished by Jordan . [ 54 ] In R. v. Coulter , the Ontario Court of Appeal helpfully summarized [21] the relevant analytical steps to be taken in the adjudication of s. 11(

b) claims following Jordan :

(1) Raw delay : determine the total delay, which is from the charge to the actual or anticipated end of trial. [22]

(2) Net delay : subtract the defence delay from the total delay, which results in the “net delay”. [23]

(3) Compare the net delay to the presumptive ceiling.

(4) Determine onus : if the net delay exceeds the presumptive ceiling, it is presumptively unreasonable. To rebut the presumption, the Crown must establish the presence of exceptional circumstances – discrete events or a case demonstrating particular complexity. [24]

(5) Remaining delay : subtract delay caused by discrete events.

(6) Revisit onus : after subtracting delay caused by discrete events, determine whether or not delay has fallen below 30 months, thereby shifting the onus to the accused.

(7) If the remaining delay falls below the presumptive ceiling : the accused must show that the delay was unreasonable. [ 55 ] As highlighted by the British Columbia Court of Appeal in R. v. K.N. , only the remaining delay matters. In other words, no matter how contextual the analysis, the Court is not to consider the total delay in its assessment. [25] [ 56 ] Where the remaining delay falls below the ceiling, stays will only be granted in “clear cases”. [26] 2- Applying the Jordan principles to the case at bar

a) The agreement between the parties about the qualification of certain delays does not bind the Court [ 57 ] As mentioned above, the parties proceeded by agreed statement of facts during the hearing of the s. 11 (

b) application. There appeared to be little dispute with respect to the factual aspects of the case’s procedural history. As highlighted by the Court of Appeal in R. c. Rice , this is an entirely appropriate way of proceeding.

Formal evidence at a voir dire will not always be required, much like transcripts and court minutes. [27] [ 58 ] However, beyond the factual admissions, at the outset of the application, the defence and Crown agreed that the remaining delay amounted to approximately 28 ½ months. [ 59 ] In other words, save for a short exceptional circumstance at the tail end of the matter (regarding a health issue), the parties agreed that all of the delays were attributable to the Crown or to the “State” more generally.

These were statements of legal conclusions. [ 60 ] It is settled that in matters pertaining to the application of s. 11(

b) of the Charter , the characterization of specific periods of delay amount to questions of law [28] to be determined by the trial judge. [ 61 ] As such, while I give the Crown’s position serious consideration, its concession does not end the debate. It is trite law that admissions on points of law do not bind the Court. This rule applies in criminal law. [29] The Court is not required to follow joint positions on the law, even if they result from a sincere consensus between counsel.

It is the courts, not counsel, that have the ultimate responsibility for the application of the law. [30] If the joint position is incorrect in law, it is the judge’s duty to correct it, and indeed, sometimes reject the concessions of the prosecution. [31] After all, in any proceeding involving criminal law issues, questions of law affect more than the parties’ private rights.

The courts must therefore apply the law independent of representations, assurances or concessions by legal counsel regarding the applicability of any aspect of the law. [ 62 ] In fact, during the hearing, [32] the Court explicitly flagged two specific periods and asked the parties to make full submissions on the topic, notwithstanding their agreement:

(1) The adjournment caused by the police officer being on sick leave; and

(2) The adjournment caused by the fact that the defence wanted to obtain the preliminary inquiry transcript before proceeding to the trial. [ 63 ] For reasons explained below, despite counsel’s able submissions, the Court disagrees with the parties (including the Crown) on these two periods, as well as certain other short delays. They cannot be considered “State” delay.

b) Defence delay [ 64 ] As explained above, defence delay must be subtracted from the total delay. [ 65 ] Periods will be classified as “defence delay” when they have been subject to waiver, be it implicit or explicit, so long as it be clear and unequivocal. [33] [ 66 ] Another standard component of “defence caused” delay will be where the Court and the Crown are ready to proceed, but the defence is not. [34] [ 67 ] As expressed by Scheibel J. in R. v.

Wheeler , common sense dictates that “the accused cannot on one hand request adjournments or consent to them and on the other hand use adjournments as a basis for the argument that he has not been tried within a reasonable time”. [35] [ 68 ] From a logical standpoint, it would be unfair to attribute to the State the delays caused by the accused having turned down available court dates.

i) The short successive delaying of the bail hearing, the preliminary inquiry and the bail review hearing [ 69 ] An interim release hearing is not a trial. Rather, it is a proceeding that is intended to be expeditious. [36] The evidence on both sides cannot be exhaustive and the parties focus on matters pertaining to the risk presented by the accused and whatever features of his release plan might sufficiently appease those concerns. [ 70 ] By their very nature and in accordance with s. 516(1) C.C. , it is expected that bail hearings will proceed quickly after the accused’s arrest and detention.

In fact, the hearing cannot be adjourned more than three clear days unless the accused explicitly consents. Obviously, the accused may always consent to delay the hearing and waive his right to a speedy bail hearing.

[ 71 ] Here, the State ( i.e. the prosecution and the court system) could have proceeded with and heard Mr. McKenzie-Fletcher’s bail hearing on August 8 th 2018, two days after his first appearance. [ 72 ] Alas, the accused chose to postpone the matter three times, for a total of 12 days. This was because he sought to improve his plan of release, secure potential sureties and better prepare his case. To be sure, he was entitled to do so. However, he cannot blame “the system” for not being ready earlier.

It plainly was. [ 73 ] The same could be said of the accused’s election and his request for a preliminary inquiry. These are very basic decisions that can and should be contemplated from the moment the accused is charged. As documented above, the accused’s pre-trial detention was ordered by Dalmau J. on August 20 th 2018. Yet, the election was only made on September 21 st 2018, some 32 days later, when the accused formally requested his preliminary hearing.

When asked what accounted for this extra month delay, the parties explained that the bail hearing had concluded quite late in the day, at approximately 4:30 pm. [37] I infer from this that the Trial Coordinator’s office was closed and that they could not immediately obtain a hearing date. [ 74 ] That may be true. Such situations are somewhat common and entirely understandable. However, when that is the case, the file could – and should – be adjourned to the next day (which was Tuesday, a business day), for the sole purpose of getting a date to set the preliminary hearing.

There is no logical reason to delay the matter by an entire month due to the closure of a scheduling office that would be opening the very next day at 8:30 am. In the Court’s view, this was an unnecessary adjournment and an inefficient practice. [38] For this reason, the additional 31 days shall be attributed to the defence, as they involved an implicit waiver. [ 75 ] I hasten to add that this analysis is not meant to assign “blame” to the accused or to defence counsel. In the governing analysis under s. 11(

b) of the Charter , there is no need to impute improper motives to an accused or to his lawyer. Rather, this is merely an analytical exercise in attempting to accurately calculate and subtract the delay attributable to the defence as a matter of law. ii) The delay caused by waiting for the transcript of the preliminary inquiry [ 76 ] The delays to obtain English-language transcripts in the province of Quebec have spiralled out of control in recent years.

In the case at bar, the Court Services informed the parties there was an approximate one-year waiting period to obtain the official transcript of the preliminary inquiry. [ 77 ] Said preliminary inquiry lasted one day. [ 78 ] By any imaginable standard, a one-year waiting period is grossly unacceptable. [ 79 ] Ultimately, the transcripts ended up taking 8 months to be ready.

They were requested on January 18 th 2019 and they were obtained by the parties on September 16 th 2019, which was 11 days after the originally scheduled trial date. [ 80 ] The lack of Court-supplied English stenographers in the district of Montreal is hardly a recent phenomenon. In fact, for over two years, our Court of Appeal has raised alarm bells on several occasions about this pressing problem. [39] Most recently in R. v. Dhingra , Mainville J.A. reiterated: There is no doubt that this is a situation which is unfortunately all too common in appeals from trials held with English-speaking defendants.

The delays in obtaining trial transcripts to allow appeals to proceed, particularly when the trial was held in English or was simultaneously interpreted into English, have become a recurring difficulty affecting the confidence of the public in the administration of justice. [40] [ 81 ] It appears that the situation has barely improved, which the undersigned has decried on several occasions in other matters, as have other judges of this Court.

Notably, if the Ministry of Justice is unable to hire sufficient staff to meet the demand, it seems incomprehensible that it would not outsource English transcript orders to certified stenographers in Ontario, in order to bring the backlog under control. In this information age, the cross-province transfer of audio files could be done easily and at low cost.

Similarly, at first glance, it appears that ss. 540(1)(b)(ii) and 540(6) C.C. leave open the possibility that “provincial legislation” permit other forms of transcribing, perhaps by way of automated software. [ 82 ] Regrettably, the government’s inactivity on this front might be seen as a profound disregard for the rights of English-speaking litigants in criminal matters in the province of Quebec, most of which are concentrated in the district of Montreal. This includes Anglophone accused as much as it does Anglophone victims and witnesses, all of which equally deserve prompt and efficient justice.

It also offends the spirit of s. 530 of the Criminal Code . [ 83 ] Ultimately, it is not for the judiciary to direct the executive how to manage its affairs. That being said, this pressing problem may very well lead to drastic constitutional remedies in given files, should the matter not be addressed. [ 84 ] Alas, the case at bar is not one of those cases requiring a remedy, for the following reasons. [ 85 ] The obtaining of a transcript of the preliminary inquiry will not always be essential to the preparation of a case, a trial or a Charter application.

In the general sense, transcripts will always be useful and advisable. However, whether or not they are crucial falls to a case-by-case assessment. After all, the integral audio recording allows for comprehensive preparation of a case and may even be used to impeach witnesses at trial in the event of a contradiction. [ 86 ] In that regard, I respectfully disagree with the Newfoundland Court of Appeal in R. v.

McGrath (a pre- Jordan case from 1985), in which it suggested – as a blanket statement – that a preliminary inquiry transcript will always be necessary to prepare for trial. [41] In fact, in the more recent R. v. Jack , that same Court acknowledged that the defence may bear some responsibility for the delay in waiting for a transcript before holding the trial, depending on the circumstances. [42]

[ 87 ] In R. v. Maillet , the New-Brunswick Court of Appeal took a very different position: As a general observation, the full transcript of preliminary hearings is unnecessary… There is, therefore, and unless otherwise ordered by a judge of [the Superior Court], no valid reason for holding up the trial of criminal offences in a court of superior jurisdiction, while awaiting a transcript of a preliminary hearing. [43] [ 88 ] The applicant contends that without the transcript, he was unable to adequately [44] prepare his Charter motion for the exclusion of evidence.

He describes the transcript as an important tool that would be beneficial to all the parties, given how tedious it is to work from an audio recording. In support of its position, the defence cites R. v. King , in which the Newfoundland Court of Appeal mentioned that in that case , the accused should not be penalized by the deduction of time while he waited for the receipt of the preliminary inquiry transcript. [45] [ 89 ] However, in King , the Court of Appeal certainly did not hold as a blanket statement that the defence would always be entitled to wait for a transcript before holding the trial.

Instead, it simply agreed with the trial judge that, given that file’s particular history, it was appropriate to wait for the transcripts. The inquiry had taken place in February and lasted three days. [46] The trial had been set for late October, some 8 months later. In the meantime, a case-management judge in the summer had ordered that the transcripts be expedited and ready no later than July 2 nd . Alas, they were not ready on time for the trial, which had to be adjourned for that reason.

It is relevant to note that in that case, the disclosure was “overwhelmingly” large, dealing with 46 warrantless seizures, three “massive” search sites at a home and two businesses, 44 production orders, encrypted emails and four out-of-province seizures from four companies. [47] [ 90 ] The defence also cites R. v. Taylor , in which the Court decried the Crown’s failure to seek orders to expedite the preparation of the transcripts, where they were taking unusually long. [48] However, in that case, the preliminary inquiry had lasted two weeks. [ 91 ] This is simply not comparable to Mr.

McKenzie-Fletcher’s file. [ 92 ] Finally, although the wording of s. 540(6) C.C. seems firm, in R. v. L’Espinay , the British-Columbia Court of Appeal nevertheless held that the transcription – in writing – of the official sound recording at the preliminary inquiry is not mandatory.

Instead, the availability of audio recordings of the testimony at nominal cost sufficiently respected the accused’s rights. [49] As for s. 551 C.C. , which provides that the record of the case be transmitted to the trial court after committal, it contains no explicit reference to stenographer transcripts. [ 93 ] In the case at bar, the Court finds that the transcript was not essential or even necessary. [ 94 ] Counsel at the preliminary inquiry was the same counsel acting at trial for the defence.

She was obviously familiar with the evidence, she likely had detailed and contemporaneous notes from the officers’ testimony and she had at her disposal the audio recording of the inquiry. Although they may not be the ideal or preferred tool for counsel, for short one-day hearings, audio recordings are more than adequate to allow for the defence to fully prepare a thorough Charter motion and find specific pinpoints in the testimony. [ 95 ] Recall that 8 months passed between the preliminary inquiry and the original scheduled start of the trial.

A period of 8 months is more than enough to allow for the playback of a one-day hearing in preparation of a Charter motion. The task was not daunting and it was certainly not crushing. Quite the contrary: since the French-English

interpretation was consecutive at the preliminary inquiry, this slows the cadence and accordingly makes note taking from the audio far easier. [ 96 ] Counsel contends that the transcripts were essential because the testimony revealed a version of the events that was different from that which appeared in the originally disclosed police reports.

Even if that is true, the foregoing still applies: attendance at the preliminary hearing, combined with the availability of the integral audio record were amply sufficient to allow for a fulsome preparation of the Charter motion and voir dire . [ 97 ] Had the defence insisted on obtaining a transcript as a matter of preference, this Court’s earlier comments apply with just as much force: the accused was free to hire a certified stenographer in Ottawa to prepare a one-day bilingual transcript.

He chose not to. [ 98 ] Had this been a preliminary inquiry spanning several days or involving a plethora of witnesses, things might have been different. Again, a case-by-case analysis is critical. [ 99 ] In the case at bar, the delay caused by waiting for the preliminary inquiry transcript is properly qualified as defence delay. [ 100 ] In the circumstances, the trial could have and should have proceeded as scheduled on September 5 th 2019. The Jordan decision holds the State to account. Here, the State offered to hold the trial.

The Provincial Court had the resources necessary to hear the accused’s trial as scheduled. Hence, in the general sense, the “State” gave the accused the opportunity to have his trial. He chose to delay it.

Whether or not the Crown acquiesced to his request is immaterial. [ 101 ] For these reasons, all the delays between the original projected trial date (September 5 th ) and the new trial start (January 21 st ) are attributed to the accused. [50] This amounts to a period of 138 days. [ 102 ] Even if the Court were incorrect about this particular qualification, the decision to wait for the transcript would still be otherwise relevant to the first prong of the below-ceiling test, discussed below, namely: did the defence take meaningful steps demonstrating a sustained effort to expedite the proceedings?

In fact, that appears to the Crown’s position. Without formally attributing the adjournment as “defence delay”, the Crown argues that waiting for the transcript, as a matter of preference, demonstrated lack of urgency by the defence. [ 103 ] One final observation is warranted on the issue of the supposed transcript-induced adjournment. In Mr. McKenzie-Fletcher’s application, paragraph 28 indicates the following:

On the 5 th of September 2019 [which was supposed to be the beginning of the trial], the matter is adjourned to September 26 th 2019 as applicant’s counsel is required to collaborate with the police following an incident of a criminal nature at her domicile. [ 104 ] As I understand this paragraph, it suggests that defence counsel was unavailable to be in Court on September 5 th due to an unrelated criminal incident that had occurred. In fact, that is why the case was adjourned to September 26 th .

If that is so, the ultimate result is that the trial would not have been able to proceed on September 5 th anyway, as scheduled, even if the transcripts had been received on time. This “incident of a criminal nature” would certainly qualify as a discrete event/exceptional circumstance. In other words, the lack of transcripts did not materially change the fate of the file’s scheduling.

c) Exceptional circumstances – discrete events [ 105 ] As mentioned above, a 36-day period in October of 2020 is not litigious. A serious family emergency [51] involving Crown counsel constitutes a discrete event that is to be subtracted from the total delay. [52] [ 106 ] Beyond this uncontroversial period, a 19-day delay was also caused in December of 2018 when the preliminary inquiry had to be rescheduled due to the fact that officer Delorme was on sick leave. [ 107 ] In R. v. Jordan , the Supreme Court gave a list of examples of what may amount to an exceptional circumstance arising from a discrete event.

In doing so, it explicitly listed “illness”. [53] [ 108 ] Since Jordan , the Courts have repeatedly held that when a judge, [54] defence lawyer [55] , prosecutor [56] or key witness [57] is absent due to illness or on sick leave, this will generally be considered to be “reasonably unforeseen” and “reasonably unavoidable”, and therefore an exceptional circumstance. [ 109 ] The rule has also been applied to police witnesses who are unavailable due to illness or sick leave, [58] as recently recognized by the Quebec Superior Court in R. c.

Vescio : Bien qu’aucune des parties n’ait soutenu que la période du 9 mars au 4 septembre 2015 [période pendant laquelle la policière Piché était en congé de maladie] doive être soustraite du délai net à

titre de circonstance exceptionnelle, le Tribunal estime que ce report résulte de la condition de santé de la policière Piché et constitue manifestement un évènement distinct qui ne participe pas au délai à considérer pour fins d’application des plafonds présumés . [59] [ 110 ] This is hardly new.

The state of the law was the same long before Jordan , under the Morin regime, where delays caused by the illness of witnesses [60] (including police officers [61] ), judges [62] or lawyers [63] were considered to be neutral. [ 111 ] An exceptional circumstance need not be rare or entirely uncommon. [64] [ 112 ] In the case at bar, there is little the Crown could have done to avoid or predict that an officer would be out sick. [ 113 ] Mr.

McKenzie-Fletcher argues that the Crown still could have done more following the first adjournment of the preliminary inquiry to ensure that both police officers would be available for the second scheduled inquiry. Had the Crown done so, argues the defence, it would have noticed that the officer was on leave and preventive rescheduling could have been contemplated. [ 114 ] The Court cannot accept this argument. [ 115 ] The history of the case shows that that officer Delorme’s condition is something that arose abruptly in the fall of 2018.

Recall that the preliminary inquiry was originally scheduled to proceed on October 29 th 2018. Five days earlier, on October 24 th 2018, the Crown made a request for an adjournment citing the absence of officer Soucy, who was on vacation. At the time, there was no mention of officer Delorme being unavailable for any reason, illness or otherwise. Had she been on sick leave, the Crown would certainly have been notified (as it was for Soucy).

Moreover, had officer Delorme been on sick leave, the Crown would undoubtedly have invoked that as a [more legitimate] ground for obtaining the adjournment. [ 116 ] As such, we can easily infer that Delorme was not on sick leave at the time of the first preliminary inquiry date. The hearing was adjourned. She therefore became sick sometime thereafter, somewhere in the October 29 th -December 15 th window. The Crown had no way of anticipating that this would happen.

Instead, it was notified of the officer’s absence and it made its adjournment application accordingly. [ 117 ] In such circumstances, nothing more was expected from the Crown. Obviously, it is unfortunate that her anticipated return from leave was December 22 nd , namely the day after the scheduled preliminary inquiry date. However, without more, this Court cannot assume that the sick leave was illegitimate. Had this been the subject of any challenge, it should have been raised at the relevant time, in December of 2018 before Paradis J.

Instead, it appears that the parties and the judge all accepted that the sick leave was serious enough that it mandated the officer’s absence from Court. It is not appropriate to revisit that position two years later, after seeing that the matter took longer than anticipated. [ 118 ] For all these reasons, a period of 19 days is to be deducted as an exceptional circumstance resulting from the police witness’s illness.

d) Deliberation time for the Charter motion to exclude the evidence [ 119 ] Arguments on the Charter motion were heard on October 7 th 2020. The undersigned took the matter under advisement and rendered his decision on November 5 th 2020, dismissing the application.

[ 120 ] More will be said about the reserve time taken by the Court in the

section below, pertaining to whether or not this case took “markedly longer” than it reasonably should have. [ 121 ] However, the basic question remains as to whether or not the 29-day deliberation should be subtracted from the raw delay. [ 122 ] The recent Supreme Court decision in R. v. K.G.K. is instructive, although it appears that it only dealt with “verdict deliberation”, which arises after the completion of the evidence and final argument at trial. [65] [ 123 ] The Court held that the deliberation time between the end of the evidence/argument and the delivery of the verdict did not count towards the Jordan ceilings. [66] It was still subject to s. 11 (

b) analysis, but a violation would only be found if the deliberations themselves took markedly longer than they reasonably should have. [ 124 ] The situation in the case at bar is different. The Charter motion required a mid-trial, interlocutory ruling. In fact, nowhere in K.G.K. did the Supreme Court specifically address reserve periods for mid-trial applications. Nevertheless, the following observations by the majority are apposite here: … it does not make sense to hold the Crown accountable for the time a judge takes to deliberate on the verdict.

As a matter of principle, it is improper for the Crown to interfere or be seen to interfere with the judicial deliberation process insofar as it could reasonably be seen as an attempt to influence the judge’s decision. Nor as a general rule, will the Crown be in a position to explain why the judge took the time they did to arrive at a verdict. [67] [ 125 ] Since the Supreme Court did not expressly rule on the issue of interlocutory decisions, we are left with the pre-existing caselaw, which remains valid. [ 126 ] In R. c.

Rice , our Court of Appeal mentioned, albeit in obiter dictum : Je note ici, bien que la question ne soit pas directement soulevée par les pourvois, que les délibérés en cours d’instance qui freinent le procès et rendent, pour cette raison, le tribunal indisponible, peuvent constituer des événements distincts au sens auquel l’entend la Cour suprême . Ils peuvent également traduire la complexité des questions soulevées et donc, de la complexité particulière de l’affaire: R. v. Mamouni, 2017 ABCA 347 au para. 55 .

À cet égard, on peut se fier au bon sens et à l’expérience des juges et des avocats . [68] [emphasis added] [ 127 ] In the more recent R. c. Thanabalasingham , our Court of Appeal more firmly held that deliberation time for interlocutory decisions should be deducted from the Jordan ceiling calculations. [69] [ 128 ] The Nova Scotia Court of Appeal shared the same view in R. v. Brown , in which it held that a 66-day reserve delay taken by a trial judge to produce a mid-trial decision on the validity of a search warrant should be deducted from the ceiling calculation. [70] [ 129 ] In R. v.

King , the majority chose not to definitively decide the issue, since it would not impact their ultimate decision. Nevertheless, Hoegg J.A. expressed that he was “disinclined to the notion that the time a judge takes to decide pre-trial applications should be included in the 30-month presumptive ceiling”. In that case, there had been deliberation delay on two pre-trial Charter applications that were legitimate (albeit ultimately unsuccessful). [71] [ 130 ] In R. v.

Mamouni , [72] which is cited by our Court of Appeal, the majority and concurring minority judges adopted different approaches regarding reserve delay for interlocutory decisions. The majority held that such reserve time still counted in the “bright-line” presumptive ceiling approach. Nevertheless, depending on the complexity of the evidence and the submissions, or on the number of motions, the delays might be characterized as exceptional circumstances. [73] As for Slatter J.A., he concluded that the time consumed by reserved mid-trial decisions should simply not count towards the ceilings.

Reserved decisions are a normal and necessary part of the criminal trial process. Judges have a duty to diligently provide useful reasons. [ 131 ] Since the Supreme Court denied leave to appeal in the Mamouni case, the diverging views were not definitively resolved in that case. [74] However, two years later in R. v. Chang , that same Court revisited the issue and formally concluded that the 3 ½ months of deliberation time for mid-trial Charter applications was exempt and therefore deducted from the gross timeline when calculating ceiling compliance. [75] [ 132 ] In R. c.

Thanabalasingham , the Quebec Court of Appeal appears to have similarly adopted Slatter J.A.’s concurring view from Mamouni , expressly citing his reasons. [ 133 ] For all these reasons, unless the Supreme Court of Canada explicitly states otherwise, or unless our Court of Appeal interprets R. v. K.G.K. differently, I remain bound by the existing cases of R. c. Rice and R. c. Thanabalasingham . [ 134 ] The Charter application did have the effect of “ freiner l’instance ” since the entirety of the Crown’s case was subject to exclusion.

Other dates could not be set until it was determined if the evidence survived the constitutional challenge. [ 135 ] The 29-day reserve period taken by this Court to render its decision on the Charter application will therefore be deducted from the raw delay.

e) Calculating the remaining delay [ 136 ] Based on the foregoing analysis, a total period of 55 days is to be deducted as exceptional circumstances flowing from discrete events. [ 137 ] Furthermore, a total period of 181 days is to be deducted as defence delay.

[ 138 ] Finally, a period of 29 days is deducted due to deliberation time. [ 139 ] The remaining delay is therefore 634 days, or 20 months and 3 weeks .

f) The late disclosure [ 140 ] In this case, matters pertaining to the late disclosure do not affect the calculation of the remaining delay. That is because, understandably, neither party contends that the defence was in any way responsible for the delays caused by mid-trial disclosure. [ 141 ] Nevertheless, the circumstances of exactly what occurred regarding disclosure still need to be examined by the Court. That is because they may shed light on how diligent or negligent the State was in responding to the disclosure requests, before and during the trial.

In turn, this may have an impact on a court’s decision as to whether or not the case took markedly longer than it should have. As seen below, problematic disclosure is often the main focus in the caselaw dealing with below-ceiling stay requests. [ 142 ] The nature of the disclosure requests and responses also sheds light on whether or not the defence showed a sustained effort to expedite the proceedings. [ 143 ] In that context, the Court makes the following observations.

i) What was requested and what was provided [ 144 ] It is useful here to specify exactly what was initially requested. [ 145 ] On November 29 th 2019, the defence requested disclosure of the “M-IRIS sheet regarding Mr.

McKenzie-Fletcher, as consulted by officer Delorme on her onboard computer at the time of the arrest”. [76] In the initial disclosure, the Crown had already provided a print-out of the CRPQ/CPIC database sheets pertaining to the accused and the suspect vehicle, as had been consulted by the officers on their on-board computer at the time of arrest. [77] [ 146 ] On January 7 th 2020, detective Hargassner (the investigator in charge of the file) wrote to the Crown, expressing that he believed the defence might be mistaken in its disclosure request.

He believed that instead of the M-IRIS printout, the defence “probably actually wanted” the CRPQ printout, which had already been disclosed. [78] The assumption was incorrect. Defence counsel did in fact want the M-IRIS printout, as opposed to the CRPQ documents. The Crown clarified that with the officer. [79] [ 147 ] On January 17 th 2020, the Crown finally disclosed what it described as “the M-IRIS printout regarding Mr. McKenzie-Fletcher that was available to the arresting officers on the scene”. [80] Quickly thereafter, defence counsel replied by email that the new disclosure seemed incomplete.

In particular, the sheet did not show any address, whereas officer Delorme’s testimony at the preliminary inquiry suggested that she had had access to an M-IRIS sheet with an address at the time of the arrest. Nevertheless, detective Hargassner confirmed to the Crown that according to him, there was no M-IRIS sheet showing the accused’s address in the system. [81] [ 148 ] As described above, in the course of her cross-examination, officer Delorme mistakenly suggested that she did in fact have in her possession the M-IRIS sheet with an address on it, i.e. the one she consulted at the time of the arrest.

Upon verification, she did not actually have such a document. [82] Instead, she simply had her “normal” police report, which had been disclosed. However, based on her answers and her police report, the parties inferred that there was in fact a way of accessing the M-IRIS sheet with the address that had been consulted on the scene – which had been specifically requested (but never received) by the defence.

Further verifications during a brief adjournment confirmed that the M-IRIS data that had been requested had in fact been available in the SPVM’s system for the arresting officers. [ 149 ] This caused the officer’s cross-examination to be suspended indefinitely, until the defence reassessed its position in light of the “new” disclosure and possibly requested new additional documents. [ 150 ] The matter was adjourned from January 22 nd 2020 to March 12 th 2020 in order to resolve the issue of outstanding disclosure. [ 151 ] As for the actual reason for the conflicting answers given by the police regarding the M-IRIS sheet, neither party ever presented evidence from detective Hargassner.

As such, there is no formal evidence on the record providing insight into the investigator’s perception of what had occurred or providing a description of the steps he took respond to the request(s). [ 152 ] Instead, the Crown summarized the following: • The defence had requested the M-IRIS file for the accused; • It appears that the information from the M-IRIS database accessible from inside a police car (on the on-board computer) is displayed differently than the information available when consulting the M-IRIS database from a police desktop work station (for instance, by an investigator in his office or by a liaison officer at the courthouse).

This discrepancy was only discovered mid-trial; • Ultimately, the same “information” per se can be found in both systems. However, it is displayed in different formats and in different places in the system; • What was disclosed on January 17 th 2020 to the defence was the M-IRIS file, which lacked the list of addresses for the subject.

This sheet was printed by detective Hargassner, who was the officer who was tasked with responding to the defence’s disclosure requests, presumably from his own computer; • Since detective Hargassner retrieved the M-IRIS sheet from his office computer, he assumed that he had in fact provided the very

document that had been requested by the defence; [83] • History shows that he was incorrect. [ 153 ] The defence responds that the accused should not be penalized for the fact that detective Hargassner had access to different information on his own computer than the patrol officers did on their on-board computer on the day of arrest. Besides, the defence specifically requested access to what the arresting officers saw on their screen at the time of arrest.

As such, the mistake falls on the State. ii) To what extent was the disclosure inadequate and what consequences did it generate ? [ 154 ] On this issue, the defence is correct. The error clearly falls on the Montreal Police Service. The defence request was clear as day. [ 155 ] That being said, with the benefit of hindsight, it may be understandable that the information found in police databases is listed differently on the screen, depending on whether or not the information is accessed in a police cruiser or on an investigator’s work station.

Several operational and administrative considerations may justify such display discrepancies. However, at first glance, the discrepancy is definitely surprising. The evidence is silent as to whether or not detective Hargassner knew of the discrepancy. Based on his responses in exhibit I-1, it can be inferred that he did not know about this issue.

In fact, it can also be inferred from the subsequent verifications by the Crown that the discrepancy was only discovered after speaking to the administrators of the M-IRIS database. [84] The mistake was therefore not easily detectible for the investigator. [ 156 ] Despite the foregoing, an error did occur. [ 157 ] How do these events impact the procedural history of the case? [ 158 ] First, it is difficult to overlook the fact that the disclosure request for the M-IRIS document was made by the defence on November 29 th 2019, [85] almost 16 months after the accused’s arrest and charge; almost 11 months after his preliminary inquiry; roughly two months before trial.

This was hardly the model of expediency. [ 159 ] While the deficient response undoubtedly created more delay, said delay might have been mitigated had the request been made in a more timely manner. Mr. McKenzie-Fletcher thus shares at least some responsibility with the Crown for the unanticipated delay caused by the disclosure request mid-trial. [ 160 ] On the same topic, the Court finds it peculiar that the litigious disclosure request (that spawned the later adjournments) was made on November 29 th 2019, whereas the trial was originally scheduled to start on September 5 th 2019 , almost three months earlier.

Yet, the defence had announced its Charter motion for the exclusion of evidence as far back as May 8 th 2019. The request has the hallmarks of an afterthought in the history of the proceedings.

This does not absolve the police in how slowly it dealt with the requests, but it sheds light on their relative importance in the grand scheme of the file. [ 161 ] In any event, did the Crown fail in its duty to disclose evidence in a timely manner? [ 162 ] The State ( i.e. the police, whose actions the Crown is responsible for) was blameworthy for the investigator’s initial mistake and for how slowly the police dealt with the subsequent disclosure requests.

As explained above, the investigator did make a mistake. [ 163 ] However, given the highly specific nature of the element sought and considering the fact that the M-IRIS sheet was in fact provided by detective Hargassner, the disclosure problem cannot be described as egregious. By all appearances, the investigator believed that he provided exactly what had been asked of him: i.e. , Mr. McKenzie-Fletcher’s M-IRIS sheet from the police database. [ 164 ] In the circumstances, it was normal for the investigator to use his own computer to obtain the document.

Absent some express reason to suspect a problem, he would not be expected to go into a police car and obtain the same information from an on-board computer. [ 165 ] As for what happened after January 30 th 2020, the details surrounding (1) exactly what was requested in the “new” mid-trial disclosure requests and (2) why the Crown refused to disclose a good number of requested elements was never formally placed before me in the course of this application. [ 166 ] We know that the defence made new disclosure requests in writing. [86] In order to respond to the new requests, the Crown had to reach out to the officer(

s) responsible for the management of the M-IRIS database. [87] In fact, two different police officers were assigned to obtain answers to the new disclosure requests and they were informed of the time-sensitive nature of the case. They would need to look into the general functioning of the M-IRIS system. [88] [ 167 ] On February 12 th 2020, the Crown had still not provided answers for the new disclosure requests. The Montreal Police Service had flagged that certain aspects of the requests were problematic. Although the police was willing to provide answers regarding Mr.

McKenzie-Fletcher’s information in the M-IRIS database, they were unwilling to provide broader answers regarding the general functioning of the database, including the data-entry process, on the basis of privilege. A police lieutenant was overseeing the requests and due to the sensitive nature of the information sought, an assistant chief prosecutor [89] had become involved in the vetting process. [90] [ 168 ] On February 24 th 2020, the Crown took position.

Among the list of 10 new requests made by the defence, the police agreed to answer two of them: points 7 and 8 in the list. [91] For the remaining 8 requests, the Crown formally invoked a privilege and/or claimed lack of relevance. [92]

[ 169 ] On March 12 th 2020, the defence announced that even though it was “not satisfied” with the disclosure, it would not be making additional requests and it would not be presenting any Charter challenge regarding the refusal to disclose. [93] [ 170 ] That leaves the Court with several unanswered questions about the purported disclosure problems. For instance, I am unable at this stage to assess the reasonableness of what was requested and the appropriateness of the Crown refusing additional disclosure. Ultimately, on the 10 new requested items (mid-trial), the Crown only accepted to disclose two.

In other words, it claimed privilege – or lack of relevance – for the lion’s share of what was requested. The defence did not litigate that position. [ 171 ] Thus, although there was some seemingly lengthy delay in early 2020 regarding the requested items, it can be inferred that the State was justified in taking the time to assess the validity of said requests. An assistant chief prosecutor and a police lieutenant became involved in the vetting process due to the delicate nature of what was sought.

The net result was that their verifications yielded refusals, and those refusals were uncontested by the defence. [ 172 ] Thus, the Court does not conclude that there was a “major disclosure failure”, as occurred in the case of R. v. Belle , cited by the defence, in which on the eve of the 5-day trial, the Crown disclosed 12 000 pages of new materials (described as a “mountain” by the trial judge). [94] In that case, the delay in disclosing was never explained to the judge and little was said about the data extraction itself.

The State’s conduct was egregious and inexplicable in Belle . [ 173 ] The situation in the case at bar is simply not comparable.

g) The delay falls below the presumptive ceiling: the accused’s burden [ 174 ] Due to the remaining delay in the case at bar which is short of 21 months, the burden shifts to the applicant to show that the delay is unreasonable. [ 175 ] To meet his burden, the applicant must satisfy both of the following criteria:

(1) The defence took meaningful steps demonstrating a sustained effort to expedite the proceedings; and

(2) The case took “markedly longer” than it reasonably should have. [ 176 ] Absent both these factors, the s. 11 (

b) application must fail. [95] [ 177 ] To state the obvious, the actual number, i.e. the net or remaining delay, is not determinative in and of itself. For instance, the courts have often refused to grant a stay even where the remaining delay was barely below the presumptive ceiling. [96] The opposite is also true. As Cournoyer J. (as he then was) specified in R. c.

Siderides , the trial judge must always apply the Supreme Court’s two- pronged analysis, even in cases where the remaining delay seems very small. [97] [ 178 ] Ultimately, neither party should see the 30-month ceiling as a bright-line cut-off. [98] It should certainly not be seen as a “target”. To do so would be antithetical to the spirit of Jordan .

In and of itself, a 30-month delay is nothing to be proud of and the justice system should not pat itself on the back for respecting that benchmark. [ 179 ] The applicant does not need to show any Crown “fault” in order to engage a below-ceiling stay. [99] Conversely, even in cases where there has been fault, negligence or other delay-causing errors by the State, including very late or mid-trial disclosure, [100] a stay of proceedings will not always ensue. [ 180 ] The nature and gravity of the offences charged no longer have any place in the analysis, even where the delay falls below the presumptive ceiling. [101] Therefore, the Court shall not be more tolerant of delays on account of the seriousness of the alleged crimes. [ 181 ] The applicant asserts that he has suffered significant prejudice in this case, including the ongoing stress related to the unresolved criminal charges, various periods where he has been in custody or under strict bail conditions and the financial burden of having multiple court dates (and the associated cost of preparation). [ 182 ] While the Court is not insensitive to these concerns, for cases below the presumptive ceiling, the existence of prejudice to the accused is not an express analytical factor that the Court can consider.

The existing framework already factors in such concerns. [102] As such, it will not assist the defence to assert “real and concrete prejudice”, nor will it help the Crown to argue “lack of actual prejudice”. [103] [ 183 ] As stated above, stays below the ceiling will be rare and will only be granted in clear cases.

The standard is a high one. [104] [ 184 ] As documented in the attached appendix and consistent with the Supreme Court’s caution, in practice, it is exceedingly rare for stays to be ordered in cases falling below the presumptive ceiling. [ 185 ] In fact, in the reported cases where stays were ordered, they presented circumstances that were markedly distinguishable from the case at bar. [ 186 ] Nevertheless, while some guidance can be found in referring to trial-level caselaw for comparative purposes, each case turns on its own unique set of facts and history.

Thus, a similar quantum of total delay falling under the presumptive ceiling in any particular case is of limited persuasive value in assessing whether Mr. McKenzie-Fletcher’s case took markedly longer than it reasonably should have.

i) Meaningful steps demonstrating a sustained effort to expedite the proceedings [ 187 ] As for the first criterion, while the defence is not required to act perfectly, it must act reasonably and must demonstrate more than token efforts (such as simply putting on the record that a speedy trial is desired), directed at obtaining a quick trial. It falls to the defence to show that it attempted to set the earliest possible hearing dates, was cooperative with and responsive to the Crown and to the Court, put the Crown on timely notice when delay was becoming a problem, and conducted all applications reasonably and expeditiously (including the 11(

b) application). [ 188 ] In his submissions, Crown counsel raises, as an indicator that the defence was not in a hurry, the fact that when the trial was originally set (for September of 2019), only one day was scheduled: the date of the Charter voir dire . According to the Crown, had the defence wanted to matter to move along expeditiously, it would have also asked to set the subsequent trial dates on the merits right away, thereby avoiding additional undue scheduling delays. I cannot accept such an argument.

Based on the agreed statement of facts, when the voir dire was scheduled, the Coordinating Judge for the Criminal Division of the district of Montreal imposed this method of proceeding. In other words, the judge decided that only the voir dire would be scheduled, subject to additional dates being added later. In the circumstances, it would be incongruous to hold this against the defence. [ 189 ] In the case at bar, the first prong of the test was largely respected throughout most of the proceedings, particularly their second half.

The defence often made efforts to set the earliest possible hearings dates, was cooperative and responsive to the Crown and the Court, and it raised concerns about the mounting delays on several occasions. [ 190 ] The defence made various admissions at the preliminary inquiry and at the trial [105] which streamlined the trial and shortened its duration. Similarly, the accused agreed to simultaneous

interpretation at trial. [ 191 ] The defence expressly contested the Crown’s adjournment request in the summer when officer Delorme was inexplicably absent for her cross-examination. In that sense, the conduct of the defence was often reasonable in seeking to expedite the proceedings. [ 192 ] That being said, there were certain exceptions to the trend, some more impactful than others. [ 193 ] As documented above, the multiple adjournments before and immediately after the bail hearing showed a lack of hurry on the part of the defence.

The same could be said of the fact that the defence did not contest the Crown’s first adjournment request of the preliminary inquiry, on account of a police officer being on vacation. [ 194 ] The Crown is also correct to point out that the defence could have asked to

schedule a trial date at the same time as requesting a bail review under s. 523 C.C.

The trial would not have taken place immediately and such an approach would have amply allowed for the accused to pursue his post-preliminary interim release it the meantime. [ 195 ] Furthermore, the disclosure request pertaining to the M-IRIS sheet was made late: almost 16 months after the accused’s arrest and charge; almost 11 months after his preliminary inquiry; roughly two months before trial; almost three months after what was initially scheduled to be the trial’s start. [ 196 ] Finally, the main indicator of a lacking will to expedite the proceedings was the conscious choice made by Mr.

McKenzie- Fletcher to delay his trial by several months in order to first obtain the transcript from his one-day preliminary hearing, during which three witnesses had testified. [ 197 ] That adjournment, which was requested by the defence and which is considered to have been unnecessary by this Court (for reasons detailed above), accounted for a 138-day postponement.

This is one of the longest delay-causing periods in the entire history of the proceedings. [ 198 ] For all these reasons, despite the often appropriate conduct of the defence in this matter, I am not satisfied overall that the defence has met its burden with regard to the first prong of the test. ii) Did the case take markedly longer than it should have ? [ 199 ] Among her arguments, defence c

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