R. v. J.F., 2021 QCCA 550

Sanderson c. Director of Criminal and Penal Prosecutions 2021 QCCA 550 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-007466-202 (500-36-009414-197) DATE: March 30, 2021 BEFORE THE HONOURABLE FRÉDÉRIC BACHAND, J.A. JACQUELINE SANDERSON APPLICANT – Accused v. DIRECTOR OF CRIMINAL AND PENAL PROSECUTIONS RESPONDENT – Prosecutor JUDGMENT [ 1 ] The applicant seeks leave to appeal from a judgment of the Superior Court, District of Montreal (the Honourable Pierre-C. Gagnon), dismissing appeals she lodged against two judgments of the Court of Québec. The first dismissed a Jordan [1] application alleging a breach of her rights under

section 11(

b) of the Canadian Charter of Rights and Freedoms . The second found her guilty of driving her car at a speed of 133 km/h in a zone where the limit was set at 70 km/h. [ 2 ] That guilty verdict came after what was effectively a retrial. A first trial, held in November 2016, had ended with a guilty verdict — handed down in March 2017 — which was quashed by the Superior Court in June 2018. The second trial took place in May 2019 and the judgments on both the Jordan application and the merits were released in July 2019. [ 3 ] As the application is based on

section 291 C.P.P. , leave to appeal can only be granted if the applicant shows “sufficient interest in a question of law alone/ un intérêt suffisant pour faire décider d’une question de droit seulement. ” However, it is clear from the case law that she must not only demonstrate that the proposed grounds raise questions of law; she must also demonstrate that those grounds are serious in that she would have a reasonable chance of succeeding before the Court.

Moreover, those questions of law must warrant the Court’s attention, which will particularly be the case if the answers thereto are likely to have a significant impact on the administration of justice, or if the judges below appear to have committed obvious errors that caused a flagrant injustice. As my colleague Justice Beaupré recently pointed out, applications based on

section 291 C.P.P. are rarely granted. [2] [ 4 ] The stringent standard set out in

section 291 C.P.P. is not met with respect to the appeal from conviction. Even assuming that the proposed grounds of appeal raise one or several questions of law, the applicant has not convinced me that those questions are sufficiently important or that they were answered in an obviously erroneous manner. [ 5 ] I come to the same conclusion with respect to the appeal concerning the Jordan application. [ 6 ] Reiterating an argument she presented to the trial judge, the applicant first contends that appellate delays should not automatically be deducted and ignored under the Jordan framework.

However, the law on this point is currently settled and it states that such delays are not to be taken into consideration while ruling on a Jordan application. [3] The question raised by the applicant is therefore not one that warrants the Court’s attention. [ 7 ] The applicant also takes issue with the trial judge’s holding that she bore the burden of demonstrating that the delay within which the second trial was held was unreasonable. As the Supreme Court of Canada recently granted leave to appeal from the Court’s decision in the case of R. v.

J.F. [4] — which also involves a Jordan application made in the context of a retrial and in which similar burden-related issues arise —, I accept that the manner in which the Jordan framework ought to be applied in a case like the present one raises important questions of law. [ 8 ] However, the applicant has not demonstrated that any error the trial judge might have made by allocating the burden as she did is likely to have had an impact on the outcome.

After a careful and thorough analysis of the circumstances of this case, the judge found that the applicant was responsible for 17 of the 28 months that elapsed before the first trial took place, for a net delay of 11 months. In relation to the second trial, which took place 11 months after the Superior Court’s judgment quashing the first guilty verdict, the judge found that a four-month delay attributable to the Crown had little bearing on the trial date given the applicant’s own behaviour during the pre-trial phase.

In light of the trial judge’s factual findings and her conclusion that both trials were held within a reasonable delay, as well as the Superior Court’s judgment upholding her reasoning on these issues, I fail to see how the applicant would succeed in convincing a panel of the Court that the Crown had to prove additional exceptional circumstances.

FOR THESE REASONS, THE UNDERSIGNED: [ 9 ] DISMISSES the application for leave to appeal, with legal costs. FRÉDÉRIC BACHAND, J.A. Mtre Jacqueline Sanderson Unrepresented Mtre Julien Beaulieu Director of Criminal and Penal Prosecutions For the respondent Date of hearing: March 26, 2021