R. v ., 2017 QCCQ 2190

R. c. Hui 2017 QCCQ 2190 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF GATINEAU LOCALITY OF GATINEAU Criminal Division No. 550-01-080393-145 DATE: March 9, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE RICHARD LAFLAMME J.C.Q. ______________________________________________________________________ THE QUEEN Complainant-RESPONDENT v. CHI SHING ALEX HUI Defendant-PETITIONER ______________________________________________________________________ DECISION ON A MOTION UNDER SECTIONS 7, 11(

B) AND 24(1) OF THE CANADIAN CHARTER OF RIGHTS AND FREEDOMS ______________________________________________________________________ [ 1 ] The petitioner faces

summary conviction charges of operating a motor vehicle while impaired and with a quantity of alcohol over the limit prescribed in the Criminal Code . [ 2 ] At the beginning of his trial, he filed a motion for a stay of proceedings because of a failure to be tried within a reasonable time under sections 7 , 11(

b) and 24(1) of the Charter . He contended that, at the time of the hearing of this motion, a period of 28 months and 22 days had elapsed since the information was filed. However, he acknowledged that a period of 70 days had to be subtracted because of express waiving of the delay at the time of an adjournment. [ 3 ] For its part, the prosecution arrived at a period of 17.8 months, which would comply with the ceiling set out by the Supreme Court in R. v . Jordan . [1] Subsidiarily, if the ceiling is found to have been exceeded, the prosecution is of the opinion that the parties relied on the law in force prior to Jordan . I. ISSUES IN DISPUTE [ 4 ] According to the new framework for applying

section 11(

b) of the Charter , did the delays exceed the prescribed ceiling? [ 5 ] If so, has the Crown satisfied the Court that the transitional exceptional circumstance may apply based on the parties’ reasonable reliance on the law as it previously existed? II. THE RELEVANT FACTS [ 6 ] A two-count information in relation to driving while intoxicated and with a blood alcohol level greater than the limit was filed on August 26, 2014.

The defendant was summoned to appear before the Court on October 15, 2014. [ 7 ] For the remainder of the evidence, the parties jointly submitted the audio recordings of each adjournment in this case, which can be summarized as follows: • October 15, 2014: Appearance during which a not-guilty plea was entered. A pro forma date was requested. The prosecution offered from November 26 to 28, 2014. The petitioner’s lawyer was away in training. The case was adjourned to January 14, 2015; • January 14, 2015: The petitioner’s lawyer stated that he had requested additional evidence.

The case was adjourned to April 22, 2015; • April 22, 2015: The petitioner’s lawyer reiterated that he had made several requests for additional evidence. Part of it was placed in his mailbox at the Courthouse. Moreover, he had to go to the Crown’s office to take cognizance of the 911 call because of the sensitive nature of the information found in it. The parties agreed to postpone the case to July 13. The petitioner’s lawyer clearly stated that it was at the defence’s request; • July 13, 2015: The petitioner’s lawyer asked for a colour version of the notes in the notepad.

The evidence provided the week before made him suspect alterations. The prosecution’s attorney promised that he would communicate with the police department;

• October 7, 2015: The prosecution’s attorney indicated that he had not received the photograph of the notes in the notepad, or heard from the police force since last time. The case was postponed for additional disclosure to November 13, 2015; • November 13, 2015: The petitioner’s lawyer indicated that, on the day before, he had received an email from the prosecution containing additional evidence including the requested colour photograph of the notes. He printed them in black and white, but said that he would examine them in colour. The evidence seemed to be complete and Mtre.

Boisvert wanted to meet with his client. A last pro forma was granted, and the case was adjourned to February 17, 2016; • February 17, 2016: The petitioner’s lawyer asked for a trial date. June 16, 2016 was offered. Mtre. Boisvert declined on the ground the he would be away on a fishing trip. He said that if there were no other dates available, the case could be adjourned pro forma in the short term. He also stated that [TRANSLATION] “[t]he delay is not an issue”. He undertook not to invoke the delay until the next date, i.e. April 28, 2016.

He implied that he still did not have the photograph of the notes, asked that the notes be brought to the trial and said that they could also be emailed to him; • April 28, 2016: The petitioner’s lawyer pointed out that the case was postponed so that he could obtain a photograph of the notes in the notepad. He said that he had met with Mtre. Genest, who had already emailed him the photograph or photographs. The attorneys’ discussions made it possible to understand that the email was sent to Mtre. Boisvert in November, but that Mtre. Boisvert had found it only on the previous weekend.

Moreover, a settlement offer was sent to him on the Friday before and, consequently, he wanted to meet with his client. The case was postponed to July 6, 2016; • July 6, 2016: The parties agreed to set the trial for January 17, 2017, for a duration of two hours. [ 8 ] The repeated correspondence between the Crown and the police force for obtaining the notes in the notepad in colour was also adduced in evidence. [2] [ 9 ] The evidence was completed, in particular by an email sent on November 12, 2015 by the attorney for the DPCP, Mtre. Marie- Josée Genest, to the applicant’s lawyer, Mtre.

François Boisvert. [3] In fact, at the hearing of November 13, 2015, he affirmed that he had received it and could examine the colour copy. It is rather surprising that, on April 28, 2016, Mtre. Boisvert contended that he had seen the November 12, 2015 email only on the preceding weekend; his comments at the November 13, 2015 hearing clearly implied that he had received the email.

His good faith cannot be questioned, however, his memory obviously failed him or he very simply mishandled that email. [ 10 ] Further to the hearing of the motion, on January 17, 2017, I announced that the decision would be rendered on March 9, 2017. Regardless of the Court’s decision on the motion for failure to be tried within a reasonable time, the trial should end on that date. Thus, between the time of the information and the expected end of the trial, 30 months and 14 days elapsed. III. THE LAW [ 11 ] Under

section 11(

b) of the Canadian Charter of Rights and Freedoms , any person charged with an offence has the right to be tried within a reasonable time. [ 12 ] After a few decades of interpreting that provision, the Supreme Court has revisited the principles that apply when determining the reasonable time mentioned in

section 11(

b) of the Charter , in R . v. Jordan , supra . The new analytical framework provides for a presumptive ceiling above which the time that elapsed from the charges to the conclusion of the trial is deemed unreasonable unless exceptional circumstances justify it. In this case, the presumptive ceiling is 18 months. [ 13 ] For the purpose of calculating whether the ceiling has been reached, the delays attributable to the accused, and those he waived, must be subtracted. [ 14 ] The analytical process could not be summarized better than it was by the Court of Appeal in Béliveau c.

R. : [4] [TRANSLATION] [91] When the ceiling thus calculated is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances.

Circumstances are truly exceptional only when they lie outside the Crown’s control, because they are reasonably unforeseen or unavoidable and because they cannot reasonably be remedied by the Crown’s attorney. [92] When the delay is below the presumptive ceiling, the burden is on the accused to establish the unreasonableness of the delay by demonstrating a sustained effort on his or her part to expedite the proceedings, and that the case took markedly longer than it reasonably should have. [97] To justify the reasonableness of the time the case has taken and benefit from the transitional exceptional circumstance, the Crown must satisfy the court based on the parties’ reasonable reliance on the law as it applied at the time in question. [ 15 ] However, the Supreme Court points out that, for cases that were in the system at the time of Jordan , the framework must be applied flexibly and contextually.

Thus, the new framework of analysis provides for those cases a “transitional exceptional circumstance” that applies to the cases in which the delay exceeds the ceiling. In Jordan , the majority judges described it as follows: [96] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed . This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework.

For cases currently in the system, these

considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable. Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account . [97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

Judges in jurisdictions plagued by lengthy, persistent, and notorious institutional delays should account for this reality, as Crown counsel’s behaviour is constrained by systemic delay issues . Parliament, the legislatures, and Crown counsel need time to respond to this decision, and stays of proceedings cannot be granted en masse simply because problems with institutional delay currently exist. As we have said, the administration of justice cannot countenance a recurrence of Askov .

This transitional exceptional circumstance recognizes that change takes time, and institutional delay—even if it is significant—will not automatically result in a stay of proceedings . [98] On the other hand, the s. 11(

b) rights of all accused persons cannot be held in abeyance while the system works to respond to this new framework.

Section 11(

b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual. We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case . [ 16 ] As the Court of Appeal pointed out in R. c.

Huard : [5] [TRANSLATION] [27] On the basis of the law as it previously existed, once a judge was satisfied that the length of the overall delay justified an in- depth analysis, 21 he or she had to classify the delays in five categories, clearly described in R. c. Camiran , 22 and then determine whether the accused had suffered prejudice as a result of those delays. 23 Lastly, the judge had to weigh the overall delay, its causes, the interest protected under

section 11( b ), and the prejudice to the accused. 24 [ 17 ] In light of these principles, let us analyze the delays of this case. IV. APPLICATION TO THIS CASE [ 18 ] According to the new framework for applying

section 11(

b) of the Charter , did the delays exceed the prescribed ceiling? [ 19 ] The time elapsed between the information and the expected end of the trial is 30 months and 14 days. From these figures, the delays the defence explicitly or implicitly waived must be subtracted. It is important to remember that the waivers must be clear and unambiguous. [ 20 ] It is admitted that, between February 17 and April 28, 2016, there was express waiver. That period of 71 days must be subtracted from the overall delay of 926 days. [ 21 ] Moreover, the Court must also deduct the delays attributable to the defence.

Those delays could be due to tactics, such as frivolous requests, or caused by dates set when the defence is not ready to proceed, whereas the Crown is ready to proceed and the Court is available. Delays may also be due to other types of actions by the defence. [6] [ 22 ] As such, the unavailability of the petitioner’s lawyer between November 26 and 28, 2014 for training purposes is attributable to the defence, since the prosecution and the Court were available to proceed at the disclosure of evidence stage.

The case was postponed, in the interest of the petitioner, by 47 days. [ 23 ] When the case was adjourned from April 22 to July 13, 2015, the petitioner’s lawyer clearly indicated that it was [TRANSLATION] “at the defence’s request”. The Court concludes that it was an action by the defence, which leads the Court to subtract 82 days. The lawyer had to go to the prosecution’s office to have access to the 911 call. It goes without saying that the process does not require such a long time.

A few days, at most, would have been sufficient to meet with the prosecutor. [ 24 ] Moreover, the Court concludes that the period from April 28 to July 6, 2016 is also attributable to the defence. In fact, the evidence shows that the requested additional evidence was sent to Mtre. Boisvert on November 12, 2015. With this new element, the disclosure of evidence was complete. He acknowledged it at the hearing held the next day. But on April 28, 2016, he said that he found the email containing the requested photograph only on the previous weekend.

Moreover, he received a settlement offer, which he wanted to discuss in greater detail with his client. If it were for this last element alone, the Crown would have been responsible for the delay. However, the recorded hearing shows that the lawyer had just found the evidentiary photograph, whereas he actually had it in his possession since November 12, 2015. Consequently, he wanted to postpone the case in order to meet with his client.

This delay is attributable to the mishandling of the November 12, 2015 email, which completed the disclosure of evidence. [ 25 ] Thus, an additional period of 198 days must be subtracted because of the defence’s actions. In all, this time period and the one arising from the express waiver make it possible to subtract 269 days from the overall delay. The remaining delay totals 657 days, which is 1 year and 292 days (21 months and 19 days).

The delay exceeds the presumptive ceiling. [ 26 ] Has the Crown shown the existence of exceptional circumstances ? [ 27 ] The evidence reveals that the Crown communicated with the police force on four occasions to obtain the evidentiary element in issue. The Crown cannot be criticized for taking the necessary steps and even recommending to the police force ways to meet the request despite its limited technological means. The police force’s negligence in meeting a request for evidence, already in its possession, is not an exceptional circumstance that the prosecution can raise.

The absence of equipment to print a colour document at the police station is

astonishing, even pitiful, in this technological age. Although such deficiency is exceptional nowadays, it does not constitute an exceptional circumstance within the meaning of Jordan . In R. c. Huard , supra , our Court of Appeal listed several examples of what constitutes an exceptional circumstance. Clearly, the proposed circumstance is not of that nature. It is not an unforeseen or reasonably unavoidable circumstance, especially in a case as straightforward as this one. Such failure is due to the State.

For the purpose of determining the Crown’s share of responsibility, all the State entities involved should, in this case at least, be grouped together without distinction. It is up to the State to provide an accused with a trial within a reasonable time. [ 28 ] Given that no exceptional circumstance can justify the fact that the presumptive ceiling was exceeded, it must now be determined whether one of the two transitional exceptional circumstances listed in Jordan can apply: was the parties’ reliance on the law as it previously existed reasonable? [ 29 ] Before Jordan , R. v .

Morin [7] listed the factors to be considered when analyzing the length of a reasonable delay : 1. the length of the delay ; 2. waiver of time periods ; 3. the reasons for the delay, including (

a) inherent time requirements of the case ; (

b) actions of the accused ; (

c) actions of the Crown ; (

d) limits on institutional resources; and (

e) other reasons for delay . 4. prejudice to the accused . [ 30 ] It was a “weighing” process that required an analysis of the length of the delay and its assessment on the basis of other factors. Further to the analysis, the Court had to determine whether the delay was unreasonable given the interest protected under

section 11( b ), the explanation for the delay, and the prejudice to the accused. [ 31 ] As mentioned above, Camiran , supra , classified the various possible delays in five categories: inherent time requirements, institutional delays, actions arising from the prosecution, actions by the defence, and a category that may be described as residual. For each of the categories, we will rely on the Court of Appeal’s

definitions in paragraphs 13 through 19. [ 32 ] In this case, 50 days elapsed between the filing of the information and the court appearance. This is an inherent time requirement. A portion of the delay due to the adjournment between October 15, 2014 and January 14, 2015 is inherent requirement, that is, between October 15 and November 28, 2015, and the defence is responsible for the other portion owing to the lawyer’s unavailability.

Forty-four days are added to inherent time requirements. [ 33 ] As for institutional delays, they are evaluated at 195 days (6 months and 11 days); it concerns the period from July 6, 2016 to January 17, 2017. July 6 is the date on which the parties were ready to proceed. In the context, this time period cannot be described as long, all the more so given that a trial date was available on June 16, 2016.

Had it not been for the fishing trip of the petitioner’s lawyer, the trial would have been held seven months earlier. [ 34 ] Apart from the waiver and adjournments that we attributed to the defence earlier, on the basis of the analytical framework of Jordan , the other delays are attributed to the prosecution, either because of the problems related to the disclosure of evidence or because it is implied, such as the advisement generated by this motion. [ 35 ] After subtracting the inherent time requirements, the time elapsed is 18 months and 17 days.

In its weighing exercise, as it existed before Jordan , the Court would have necessarily taken into account the fact that the petitioner could have been tried seven months earlier. A period of about 11 months for a

summary trial would not have been considered unreasonable under the law as it previously existed . [ 36 ] Lastly, Jordan teaches us also that, for cases currently in the system, prejudice and the seriousness of the offence can help inform whether the parties’ reliance on the previous state of the law is reasonable . [8] Without minimizing the offences involved, their objective seriousness is lessened because the charges are

summary. Moreover, as regards the prejudice suffered, apart from the passage of time, the prejudice is limited to the simple presumption related to the passage of time and the ceiling established in Jordan . Even though the defence does not have to prove any other prejudice, no evidence was submitted in that regard. The minutes indicate that, out of nine appearances on the roll, the defendant never appeared before the Court, except for the hearing on this motion. Moreover, on February 17, 2016, the petitioner’s lawyer declared that the delay was not an issue.

The defence’s subsequent actions, in particular, the late handling of the November 12, 2015 email, also point in that direction. [ 37 ] Consequently, the Court considers that the Crown has convinced it that the parties’ reliance on the law as it existed previously to Jordan was reasonable. The procedural steps were taken in accordance with the law at the time, and the petitioner’s right to be tried within a reasonable time was not violated.

THEREFORE, THE COURT: DISMISSES the motion for a stay of proceedings because of a failure to be tried within a reasonable time. __________________________________ RICHARD LAFLAMME J.C.Q. Mtre. Marie-Josée Genest Criminal and penal prosecutor Mtre. Christopher Bernard François Boisvert, lawyer Counsel for the defendant-PETITIONER Date of hearing: January 17, 2017