r v. THE, 2014 QCCQ 3213

Moniz c. R. 2014 QCCQ 3213 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-038898-109 DATE: 23 April 2014 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ Robert Manuel MONIZ Petitioner v.

THE QUEEN Respondent _____________________________________________________________________________ JUDGMENT _____________________________________________________________________________ [ 1 ] Today, some twenty-six (26) months and ten (10) days from the beginning of his trial, [1] Mr. Moniz has filed a motion seeking a stay on the basis that there has been a breach of his right to be tried within a reasonable time. [2] He does not assert unreasonable delay between the date on which he was charged and the beginning of the trial.

He claims that there has been unreasonable delay since the trial began. [ 2 ] This case was originally scheduled for four weeks (twenty days). That estimate was a gross miscalculation and I fail to understand how that projection could have been made. There are fifty-three (53) counts in the indictment that allege complex matters of fraud. There have been dozens of witnesses. Their evidence is voluminous and complicated. There are hundreds of exhibits. As is his right, Mr.

Moniz has requested the translation of testimony from French to English, which by definition doubles the duration of substantial parts of the evidence. The presentation of the prosecution case took fifty-six (56) days. Mr. Moniz has testified in his own defence for thirteen (13) days and it would appear that there is much more to come. By any account this is a large and complex trial. [ 3 ] The parties have submitted calculations of the number of days of delay and the manner in which those days should be characterised. As is often the case with such questions, the results are not concordant.

For present purposes, given the nature of Mr. Moniz’s submissions, I will limit the relevant period to that between the first day of trial (13 February 2012) and today. I would also note that in principle the calculation of days should include only those on which the Cour du Québec was open and sitting. If I follow correctly the submissions of the parties, the defence estimates a total of approximately 490 days between the first day of trial and today (including the days in court). If further days are added to take into account the days projected until 8 December 2014, the figure would be approximately 595 days.

In view of the conclusion I have reached below about the proper characterisation of delay, I would accept (as a conservative figure) that there has been a delay of eighteen to twenty months of days on which the court did not sit in this case since the trial began. [ 4 ] Mr. Moniz’s claim of unreasonable delay has two aspects. One is retrospective and the other is prospective. First, he calls attention specifically to the frequency and the length of postponements to date in this trial.

Second, he estimates that from this day to the completion of the trial another year can be anticipated. [3] With respect to both aspects he says that he has suffered prejudice. He claims that there is prejudice inherent in the lapse of time and that this prejudice is magnified by his continued detention. He notes the prejudice arising from the conditions of violence and over-crowding during his detention. He says that he has suffered medical difficulties, particularly dental problems, and problems with diet. He says that he has had great difficulty in preparing his case.

He says too that as a result of his detention he has suffered prejudice in his relations with his family, notably his parents. I accept that Mr. Moniz has suffered a degree of prejudice in relation to each of the three interests associated with

section 11(

b) of the Charter: liberty, security of the person and full answer and defence. [4] [ 5 ] Counsel have been diligent in the preparation and presentation of this case. Time in court has been used efficiently. Objections have been reasonable and no time has been wasted on pointless questions of a collateral or interlocutory nature. The length of this trial is in no way attributable to dilatoriness in the parties. On the contrary, both parties have worked diligently, as is apparent in the range and number of formal admissions. The essence of Mr.

Moniz’s claim of delay is that the court has failed to allocate additional time, at an earlier stage of the proceedings, to complete the hearing of the trial. As a result, he says, the delay to date is unreasonable and the unreasonableness of this delay will only be aggravated by further delay as the case proceeds. Mr. Moniz claims that he has already suffered prejudice caused by unreasonable delay and that this prejudice will only increase with time. I would note again that this claim of

delay was advanced for the first time after two years of trial. [ 6 ] In ideal circumstances it would be preferable if long and complex cases could be handled more expeditiously. But the circumstances that prevail in the Criminal and Penal Division of the Cour du Québec in Montréal have never been ideal. The volume of work is constant and high. In a case such as this, the question posed by Mr.

Moniz is whether the right to be tried within a reasonable time entitles him, now or at any other time, to ask for more court time by priority so as to avoid prejudice or to avert further prejudice. [ 7 ] In paragraph 9 of his motion Mr.

Moniz includes eight sub-paragraphs, of which these are the first four: 9.1 Le délai de 2 ans pour la tenue d’un procès ayant un seul accusé dépasse largement les lignes directrices énoncées dans la jurisprudence; 9.2 Le requérant n’a jamais retardé indûment le cour [ sic ] de son procès; 9.3 Le requérant estime que la longueur de son procès est en raison des délais institutionnels notamment l’impossibilité de lui fournir des semaines consécutives d’audition; 9.4 Le délai déraisonnable ne découle pas des délais inhérents à la nature de l’affaire.

I do not diminish the significance of sub-paragraphs 9.5 to 9.8 but the core of the issue is in the preceding four propositions. As I have already noted, I entirely agree that at no point has Mr. Moniz unduly delayed the trial (9.2). [ 8 ] With regard to sub-paragraph 9.1, an important qualification is in order. The jurisprudence makes clear that there are no fixed limits concerning unreasonable delay. [5] Each case must be examined on its merits. It is certainly true that this is a long trial but length alone does not make it unreasonable.

The evidence in this case, testimonial and documentary, is voluminous and complex. Far more important than the number of accused persons or the number of counts is the amount of evidence and its difficulty. [6] The prosecution was efficient and methodical in the presentation of its case, as has been the defence in its examination of Mr. Moniz’s testimony.

It might well be that two years or more is a long trial but there cannot be a limit or even a guideline of two years without imposing an arbitrary constraint that is disconnected from the complexities of the case. [ 9 ] This is manifestly not a straightforward case. [7] Its length is a direct reflection of its density and its complexity. With regard to sub-paragraph 9.4 of Mr.

Moniz’s motion, it presupposes an answer to the question in issue by mistaking the length of the trial for “ délai déraisonnable .” If the length of the trial were not attributable to inherent difficulty of the case, I would be forced to conclude that the parties are wasting time but, as I have said, this is not my conclusion. On the contrary, I am satisfied that the parties have used the time available with diligence and efficiency. [ 10 ] The crux of the matter lies in sub-paragraph 9.3. Mr.

Moniz claims that the length of his trial is attributable to institutional delay and most notably the failure of the Cour du Québec to allocate consecutive weeks of hearing. For reasons I have already explained concerning the complexity of this case it could not be said that the length of the trial to date, if calculated as consecutive days, is unreasonable. Otherwise, again, I must conclude that time is being wasted. The right to be tried within a reasonable time in a long and complex case does not guarantee a right to consecutive weeks of hearing with priority over other cases.

As the jurisprudence makes plain, protection against unreasonable delay must take into account the administrative capacity within the jurisdiction in which the case is heard. [8] In this case the trial has been scheduled to provide the maximum number of hearing days at the earliest available date, having regard to the availability of the parties and the court. To my knowledge it has never been the practice of the Criminal and Penal Division of the Cour du Québec in Montréal to allocate consecutive dates for hearing until the completion of a long and complex trial.

Even if it were desirable, such an option would not work in this case because there has been, and there is, no realistic and reliable estimate of the time required for this purpose. [9] Indeed, as I have said previously in these reasons, a substantial measure of the delay in this case is attributable to an inaccurate and unrealistic estimate of its duration when the case was first scheduled for trial. [ 11 ] The right of an accused person to be tried within a reasonable time and the public interest in adjudication of a case on its merits are not always easily reconciled.

Indeed, the values they represent are in some ways incommensurable. In this case, it cannot be denied that Mr. Moniz has suffered a significant prejudice simply in the lapse of time. [10] For as long as the charges are not resolved he remains in jeopardy and that carries its own measure of prejudice.

The delay, however, is inherent in the nature of this dense and complex case and cannot be imputed to either of the parties. [11] There is no evidence that this delay should be attributed to the prosecution and, having characterised the delay as inherent in the nature of the case, there is no basis on which to say that the right to be tried within a reasonable times means that in a complex case priority must be given in the form of consecutive dates for hearing. In these circumstances the public interest in adjudication on the merits must prevail in this case. [12] Finally, I would note that under

section 11(

b) a stay of proceedings remains an exceptional remedy. [13] FOR THESE REASONS, the motion is dismissed. ____________________________________ PATRICK HEALY, J.C.Q. M e Catherine Ranalli For the petitioner M e Isabelle Roy and M e Myriam Corbeil

For the respondent Date of hearing: 24 and 28 March 2014