2013 QCCQ 4486, 2013 QCCQ 4486

Agence du revenu du Québec c. Khoury 2013 QCCQ 4486 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL LOCALITY OF MONTREAL "Criminal and Penal Division" No.: 500-61-250527-083 500-61-250529-89 500-73-003017-080 500-61-250528-081 500-73-003016-082 500-73-003018-088 DATE : April 26, 2013 ______________________________________________________________________ PRESIDING: THE HONOURABLE SALVATORE MASCIA, J.C.Q. ______________________________________________________________________ THE DEPUTY MINISTER OF REVENUE OF QUEBEC and HER MAJESTY THE QUEEN Prosecutors – Respondents v.

ELIE KHOURY FADI KHOURY GEORGE KOUMOUTSAKIS Accused – Applicants ______________________________________________________________________ JUDGMENT ON A MOTION TO STAY PROCEEDINGS (SECTIONS 7, 11 (

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) [1] ______________________________________________________________________ Introduction [ 1 ] The three applicants, Elie Khoury, Fadi Khouri, and George Koumoutsakis, are charged with tax evasion and tax fraud in four separate files. More specifically, charges have been laid under

section 62 of the Tax Administration Act (45 counts) and under

section 327 of the Excise Tax Act (30 counts). The informations, which were filed on June 27, 2008, encompass the period from February 28, 2001, to June 1, 2006. [ 2 ] The position of the prosecution is that the applicants improperly claimed input tax credits (ITC) and input tax refunds (ITR) by means of dummy corporations and false invoicing.

The amount of the tax fraud is greater than $10 million, and each of the applicants is liable to a fine totalling between $10 million and $20 million. [ 3 ] On February 11, 2013, counsel for the applicants filed an application before the undersigned seeking a stay of proceedings under subsection 24(1) of the Canadian Charter of Rights and Freedoms . This application is based on the following violations of the applicants' constitutional rights: (

i) the violation of their right to a trial within a reasonable time as protected by paragraph 11(

b) of the Charter , and (ii) abuse of process as protected by

section 7 of the Charter . [ 4 ] The Court is asked to rule on the merits of this application. Paragraph 11(

b) of the Charter : The right to be tried within a reasonable time (background and claims of the parties)

[ 5 ] The hearing on the merits of these four files has met with a number of obstacles. A first trial, expected to last 19 days, was scheduled to take place in October of 2011. Unfortunately, the hearing was cancelled because no judges were available to preside over such a lengthy trial. A second date for trial was set. This one was scheduled to last 34 days spread out between February 4, 2013, and April 12, 2013. It was also cancelled for the same reason. [ 6 ] When the application for a stay of proceedings was filed, the applicants had yet to been given their next trial date.

Unfortunately, cases of this magnitude do not lend themselves easily to an expeditious trial. The Court of Quebec projects that the trial could not be held until October 2014. [ 7 ] The time between the laying of the charges and the hearing of the application for a stay of proceedings is 56 months (June 2008 to February 2013). In itself, this "period is of sufficient length to raise an issue as to its reasonableness". [2] The prospective delay of 20 months (from February 2013 to October 2014) should also be included. In all, the applicants would have to wait 76 months for their trial.

Procedural history [ 8 ] Since the delays in this case are prima facie long, the Court must consider the reasons for them. From this perspective, it is worth recalling the history of the penal proceedings: 1. In May of 2006, representatives of the Ministère du Revenu carried out a series of searches in several premises associated with the applicants. The magnitude of their intervention was impressive: 60 agents from the Quebec Ministère du Revenu seized large amounts of property: computers and computer accessories, 90 boxes of documents, and $160,000 in cash.

The Ministère also blocked the applicants' bank accounts. 2. Despite the scope of the intervention, the Ministère delayed the formal laying of charges against the applicants. In June of 2007, the applicants asked the Superior Court for a declaration of invalidity of sections 40 and 40.1 of the Act respecting the Ministère du Revenu . Essentially, they argued that this part of the Act was contrary to sections 7 and 8 of the Charter because it allowed seized property to be held for long periods without judicial oversight.

The application for declaratory judgment also included a request for the Court to declare that the searches were unlawful and to make an order for the immediate return of the seized property. 3. On April 23, 2008, in a judgment rendered from the bench, Suzanne Courteau J. of the Superior Court granted the motion for declaratory judgment in part. Her finding that the impugned provisions of the Act were contrary to

section 8 of the Charter were based on the following observations: (1) the Act does not provide a specific time period within which a complaint must be filed, and (2) there is no judicial oversight mechanism to prolong holding the property seized. She therefore ordered that the seized property be returned but suspended the order for three months. In other words, the prosecution had three months to lay charges. 4. On June 27, 2008, one month before the deadline set in Courteau J.'s decision, the Agence du Revenu du Québec laid formal charges against the applicants. 5 .

The statements of offence and summonses were served on the applicants on June 30, 2008. The applicants presented themselves in court to appearon September 25, 2008. 6 . On September 25, 2008, the appearance was postponed for one month, until October 29, 2008. Mtre Groleau was the attorney representing Elie and Fadi Khouri, two of the three applicants. 7 . On October 29, 2008, the cases were postponed pro forma until February 18, 2009, so that the disclosure of evidence could be completed and to give the defence time to review it. At this time, Mtre Aaron G.

Rodgers replaced Mtre Jean Groleau as counsel for the applicants Fadi Khouri and George Koumoutsakis. 8 . On February 18, 2009, the files were postponed pro forma. The disclosure of the evidence was by then complete, with the exception of the handwriting expert report. Counsel for the defence expressed their intention to hold discussions with a view to settling the current files. 9 . On April 9, 2009, at the applicants’ request, the files were postponed pro forma until May 28, 2009. The adjournment was sought on the grounds that the handwriting expert report was not yet available.

The applicants, however, explicitly waived the time periods. 10 . On May 28, 2009, the files were postponed pro forma, with the consent of the parties, to June 10, 2009. To justify this postponement, the parties affirmed that they were in settlement talks. 11 . On June 10, 2009, the files were postponed pro forma until September 22, 2009, because of a pending appeal from the judgment rendered by Courteau J. of the Superior Court. The applicants argued that this decision could have a [ translation ] "considerable

influence" on the current file. The respondent, through Mtre Julie-Karine Leblanc, ardently opposed this postponement, imploring the judge to set a date for the pre-trial management conference. She added that [ translation ] "the Ministère de Revenu would like to move forward". Mtre Leblanc explained that the case pending before the Court of Appeal would have no consequence on the Ministère du Revenu's intention of continuing penal proceedings against the applicants. 12 . On September 22, 2009, the management conference was postponed until December of 2009.

The postponement was requested by Mtre Jean Arsenault, who had replaced Mtre Rodgers as counsel for the applicant George Koumoutsakis, so that he could review the evidence disclosed. Moreover, to justify the request for a postponement, the applicants told the Court that the hearing of the appeal from the judgment of Courteau J. was scheduled for February 2010 at the latest. In their opinion, the decision of the Court of Appeal [ translation ] "could settle everything". The applicants waived the right to raise the delay resulting from this postponement. 13 .

On December 1, 2009, the management conference was postponed until February 3, 2010. Mtre Rodgers was authorized to withdraw as counsel for the applicant Fadi Khoury, for whom Mtre Luc Carbonneau, who was not present at this hearing, would appear at the next management conference hearing. The handwriting expert report was given to the attorneys for the applicants that were present.

Mtre Jacques Plante, counsel for one of the applicants, stated that he wished to obtain the postponement of the management conference, claiming that the disclosure of the evidence was not complete and that the appeal from Courteau J.'s judgment would be heard in March 2010. Mtre Plante also drew the Court's attention to the fact that he had trouble [ translation ] "reaching his client" to obtain precise information about his mandate. 14 . At the hearing on December 1, 2009, Mtre Arsenault stated that his mandate was to examine the validity of the search warrants.

He added that he needed until after the holidays to complete this examination. Before granting the request for postponement, the judge presiding at the management conference required counsel to be present at the next hearing and to be familiar with the evidence by that point. 15 . On February 3, 2010, the management conference was postponed by consent until April 8, 2010. Mtre Arsenault, one of the attorneys for the applicants, argued in favour of a postponement because of the case pending before the Court of Appeal.

He stated that [ translation ] "scheduling a 28-day trial could have a tragic effect on the outcome of the case". On that date, we learned that Mtre Luc Carbonneau was a new attorney acting with Mtre Arseneault. 16 . On April 8, 2010, the management conference was postponed until June 10, 2010. Mtre Arsenault was absent due to illness, and the decision of the Court of Appeal had not yet been rendered. 17 . On June 10, 2010, the management conference was postponed to September 29, 2010. The request for postponement was made by the applicants on the grounds that the Court of Appeal decision was still pending.

Since Mtre Arsenault was absent due to illness, Mtre Jacques Plante was the only attorney for the applicants present at this hearing. 18 . On July 8, 2010, the Court of Appeal rendered its decision upholding the trial judgment, 9043-0422 Québec inc. et al. v. Deputy Minister of Revenue of Quebec , 2010 QCCA 1319 . 19 . At the management conference on September 29, 2010, the parties agreed to fix a date for a 19-day hearing starting on October 4, 2011.

It is worth noting that the judge presiding at the hearing was actually surprised that the trial was being scheduled because (1) serious talks regarding a settlement offer were currently underway and (2) the applicants had stated that the Court of Appeal's decision was going to [ translation ] "settle everything". The pre-trial conference was scheduled for April 19, 2011. 20 . The pre-trial conference of April 19 was postponed to June 6 to let the parties continue their settlement negotiations. 21 .

On June 6, the pre-trial conference was postponed to June 23, 2011, to allow the prosecution to take a position on the settlement offer presented by the applicants. 22 . On June 23, 2011, the judge presiding the pre-trial conference announced that the trial (scheduled for October 2011) was cancelled because no judges were available. The files were postponed and a management conference set for October 26, 2011.

23. On that date, the hearing of the trial was scheduled for 34 days beginning on February 4, 2013. During this managementconference, the applicants filed their application for a stay of proceedings and announced that they were ready to proceed as soonas possible. 24. On November 21, 2012, during a pre-trial conference presided by the coordinating judge, the judge announced that the trial wascancelled because no judges were available to hear the case. 25. On February 13, 2013, the Court heard the present application for a stay of proceedings. 26.

Depending on the Court's ruling on the application for a stay of proceedings, a 34-day trial for accused that are currently at libertywill not take place until October of 2014. The arguments of the parties regarding the violation of the constitutional right protected by paragraph 11(

b) Position of the applicants [9] In the view of counsel for the applicants (hereinafter the applicants), the undue delays were essentially attributable to therespondents (hereinafter the prosecution). They begin by noting that the prosecution was tardy in disclosing the handwriting expertreport. Since the disclosure of the evidence was incomplete, the hearing of the files was postponed several times before a trial date wasset. The prosecution then points out that finite institutional resources caused the two trial cancellations as well as an additional 20-monthprospective delay.

The prosecution is responsible for the institutional delays. [10] As for the prejudice caused by the delay in hearing these files on their merits, counsel for the applicants raised the followingarguments: 1. Effective weakening of their capacity to make full answer and defence: Several witnesses can no longer be found. Some may haveeven left the country, thus preventing the applicants from examining them. Other witnesses – very important ones, according to theapplicants – are now deceased. 2.

Financial consequences: Two of the applicants, the brothers Fadi Khoury and Elie Khoury, have argued that their financial situationquickly deteriorated after the charges. Among other things, the suspension of their companies' commercial activities caused a significantdecrease in their income. In addition, the Ministère du Revenu proceeded to freeze all of their bank accounts and lines of credit. As aresult, since they have no borrowing capacity, the applicants have not been able to start up any new businesses.

At the time of thehearing of the application for a stay of proceedings, the Khoury brothers were working as employees and earning very modest salaries. 3. Psychological stress: Essentially, this refers to the worry, anxiety, and stigma resulting from the undue delay in their trial. [11] It should be noted that one of the applicants, George Koumoutsakis, has not filed evidence of prejudice as a result of the delayof the trial. His counsel insists, however, that there was a presumption of prejudice due to the mere fact that the delays in this case areexcessive.

This argument is supported by the remarks of Sopinka J. in R. v. Morin, (SCC), [1992] 1 S.C.R. 771, where,on page 180 of his judgment, he writes that "prejudice may be inferred from the length of the delay. The longer the delay the more likelythat such an inference will be drawn". [12] Before concluding our outline of the arguments of the applicants, it should be noted that they also asked the Court – in thecontext of the application under paragraph 11(

b) of the Charter – to take into account the delays prior to the laying of the charges. Asmentioned above, in May of 2006, 60 agents from the Ministère du Revenu carried out a series of searches at the applicants' premises.Despite the broad scope of the seizure, only one investigator was assigned to examine the documents seized and the computerizedaccounting records. Delayed by this painstaking task, the prosecution filed the charges late. While waiting for their outcome to bedecided, the applicants suffered actual prejudice: (

i) anxiety for the future, (ii) economic loss subsequent to the suspension of theapplicants' business and the blocking of their bank accounts. Position of the prosecution [13] The prosecution, for its part, does not deny that the delay was sufficiently long to raise a doubt as to its reasonableness. Itmaintains, however, that a large part of the delay can be attributed to the actions of the applicants and the complexity of the cases. [14] With regard to the actions of the accused, the prosecution pointed out the following: 1. During proceedings, the applicants changed counsel.

The new counsel had to seek postponements to become familiar with theevidence. 2. In 2007, before the Superior Court, the applicants challenged the validity of the searches carried out by the agents of the Ministère duRevenu in May of 2006. Unhappy with the decision of the Superior Court, they appealed. While waiting for the decision of the Court ofAppeal, counsel for the applicants made several requests to postpone the hearing of the cases at issue. In the view of counsel for theapplicants, the decision of the Court of Appeal was a determinative factor in the outcome of the cases at issue.

3. On multiple occasions, the applicants waived the time requirements. Moreover, the applicants never expressed any concerns as to the length of the delay before expressing their intention to file an application for a stay of proceedings in late October of 2011. They also never objected to any of the continuances sought, nor did they seek a ruling on the dispute relating to their expressed intention to file an application for a stay of proceedings earlier. [ 15 ] In

summary, referring to Morin , the prosecution argued that the conduct of the applicant indicates very little haste to move the file forward and that they were in the majority group who do not want an early trial and that the delay benefited rather than prejudiced them. [3] [ 16 ] As for the institutional or systemic delay, the prosecution argued that it was an acceptable delay given the exceptional circumstances. Indeed, the unavailability of judges that caused the first trial dates to be postponed has had persistent effects.

At the time, there were numerous vacant judge positions. [4] These vacancies were not filled as quickly as usual because of events that eventually led to the Bastarache Commission and because of the work of the said Commission. [5] These prosecutions, which are against accused who remain at liberty and who are not subject to any restrictive conditions pending trial, cannot be given the same priority as prosecutions against accused who are detained while awaiting trial. [6] [ 17 ] Regarding the prejudice suffered by the applicants, the prosecution first noted that the evaluation thereof must be based on the infringement of the individual interests protected by paragraph 11( b ): liberty rights, the right to security of the person, and the right to make full answer and defence.

For the following reasons, the prosecution maintains that the delays in this case have caused no prejudice to these individual interests: 1. The applicants were never incarcerated and were never subject to any restrictions on their freedom; consequently, their liberty interests are not at issue. 2. The applicants’ allegation that their ability to make full answer and defence is impaired is not supported.

The claim that some witnesses are no longer available (either disappeared or deceased) is general and vague: they have not explained how these witnesses would have been essential to their defence or could have helped them. At best, it is speculation. 3. As for the infringement of their right to security of the person, the applicants cannot claim that they have suffered vexation, worry or stigmatization due to the charges. In these cases, the charges, although serious, are not brought under the Criminal Code . Consequently, violation of security of the person is reduced.

Moreover, the psychological aspect of the prejudice can be attributed to the informations, not the delays. – Abuse of process (violation of the rights protected by

section 7 of the Charter ) Failure of settlement talks and the positions of the parties [ 18 ] During the proceedings, the parties began talks with a view to negotiating a settlement of the files at issue. These discussions were characterized by counsel for the applicant as [ translation ] "very serious". At a few hearings, they went so far as to say they were [ translation ] "very optimistic" that a settlement would be negotiated. [ 19 ] Nevertheless, during a pre-trial conference presided by Jean-Pierre Boyer J. on June 23, 2011, the parties announced that negotiations had failed.

Without a negotiated settlement, they had to proceed with the trial, which was already scheduled for a 19-day hearing beginning on October 4, 2011. Unfortunately, however, during the same pre-trial conference, Boyer J. informed the parties that he was cancelling the dates scheduled for the trial because there was no judge available to hear it. [7] [ 20 ] The applicants' application for a stay of proceedings is based on the circumstances that led to the failure of the said negotiations.

According to the applicants' claims, after a meeting the Deputy Minister, the prosecution repudiated the agreement that had been reached between the parties. Even more importantly, this repudiation was the result of the Ministère du Revenu’s mismanagement of the negotiations and agreements between the parties. [ 21 ] In the view of the applicants, the Ministère du Revenu's mismanagement constitutes abuse of process, contrary to

section 7 of the Charter . More specifically, it contravenes the notion of fundamental justice and undermines the integrity of the judicial system. [ 22 ] The prosecution argues that the allegations of abuse of process are purely academic because they have no basis in fact. Although there were talks, the parties failed to reach an agreement.

According to the prosecution, at most, these talks led to a proposal that counsel undertook to consider and, given the special nature of the case, the scope of the proceedings against the applicants (fraud causing loss of a little over $10 million for the Ministère du Revenu), and the impact of a settlement, counsel had to submit the proposal to their superiors for approval. [ 23 ] The prosecution goes on to point out that the attorneys for Revenu Québec – just like criminal and penal prosecutors – have a recognized prosecutorial discretion. [8] Whether their decisions bear on the repudiation of an agreement or the refusal of a settlement offer, they concern the nature and extent of the penal prosecutions and therefore constitute the exercise of this discretionary power. [9] This power is subject to judicial review only where there is abuse of process. [10] [ 24 ] In the instant cases, there is no abuse of process because the refusal of the final offer did not affect the fairness of the trial.

After the refusal, the applicants found themselves in exactly the same situation as before they made their proposals. [11] Issues in dispute

[25] The issues are the following: 1. Was the applicants' constitutional right to stand trial within a reasonable time, as protected by paragraph 11(b), violated by thedelays accumulated since the laying of the informations? 2. Can the pre-charge delays be taken into account in the computation of the delay under paragraph 11(

b) of the Charter? 3. Can the pre-charge delays be considered in the context of

section 7 of the Charter, which protects the applicants against aviolation of life, liberty, and security of the person? 4. Did the conduct of the prosecution infringe the rights of the applicants under

section 7 of the Charter? 5. If the answer to one or more of the above questions is yes, does a permanent stay of proceedings as permitted under subsection24(1) of the Charter constitute an appropriate and just remedy? Applicable law – Prosecutorial discretion and abuse of process (section 7 of the Charter) [26] In R. v. Nixon, supra, the Supreme Court of Canada found that repudiation of a plea agreement by Crown counsel was permittedsince it falls within its prosecutorial discretion and is reviewable by a court only on grounds of abuse of process.

Before finding that therepudiation of an agreement constitutes abuse of process, however, the Court must be convinced that: (1) the fairness of the trial isaffected or (2) there is prosecutorial conduct that contravenes fundamental notions of justice and thus undermines the integrity of thejudicial process.[12] In the absence of any prosecutorial misconduct, improper motive or bad faith in the approach, circumstances, orultimate decision to repudiate, the decision to proceed with the prosecution is the Crown’s alone to make.[13] The repudiation of anagreement by the prosecution does not, in and of itself, warrant a judicial remedy.[14] [27] Although the Court emphasizes the importance of the Crown's compliance with an agreement and that repudiation must be doneprudently and sparingly, a plea agreement cannot be seen to be a contractual agreement.

This does not mean that plea agreements can beoverturned on a whim.[15] What is important is an analysis of the method by which the decision was reached to determine whether itamounted to abuse of process.[16] [28] The courts should not consider the reasons underlying the actions flowing from the exercise of prosecutorial discretion if theycannot rely on sufficient evidence. With regard to the filing of the evidence, the bar is not too high: the mere fact that an agreement isrepudiated is sufficient to trigger a review on the grounds of abuse of process.

However, the burden of convincing the Court that therepudiation of an agreement is an abuse of process is quite onerous.

A stay of proceedings is granted only "where compelling an accusedto stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and toprevent the abuse of a court’s process through oppressive or vexatious proceedings".[17] A stay of proceedings is granted only in theclearest of cases.[18] – Pre-charge delays [29] On the issue of delays, the case law has drawn a sharp line between pre-charge delays and those that start running after thelaying of the charges.[19] In R. v.

Kalanj, (SCC), [1989] 1 S.C.R. 1594 at 1607–1608, the Supreme Court ruled that thedelay referred to in paragraph 11(

b) of the Charter begins running as of the laying of the charge. The “laying of the charge” signifies thelaying of the information. Thus, when assessing the delays referred to in paragraph 11(b), the prior delay is not counted. Before thecharges are laid, however, the rights of the accused are protected by the law in general and guaranteed by

section 7, 8, 9, and 10 of theCharter.[20] More specifically, these delays are analyzed in light of the principles of abuse of process (section 7 of the Charter). [30] In a

section 7 analysis, the pre-charge delay is taken into consideration only when it results from actual prejudice to the right tomake full answer and defence or to the integrity and fairness of the trial.[21] The fairness of a trial is not automatically compromised bya long delay before the filing of the indictment. The burden is on the accused to prove that he has suffered such a prejudice.[22] The baris high: the accused must establish that the continuation of penal proceedings would cause him irreparable harm. It is granted in only theclearest of cases.[23] [31] In R. v.

Lepage, 2008 QCCA 105 at para. 21, Lise Côté, J.A. summarized the principles underlying the analysis of the pre-charge delays based on the protection granted by

section 7 of the Charter. [translation] First, the pre-charge delay in and of itself is not sufficient to justify a stay of proceedings, unless the accused establishes actual harmcaused by this delay. The mere passage of time before the charge cannot constitute a violation of the rights of an accused, since thiswould be tantamount to imposing prescription on criminal offences (R. v. L. (W.K.), (SCC), [1991] 1 S.C.R. 1091).

Itmust always be remembered that a stay of proceedings is only appropriate in the “clearest of cases”, where the prejudice to the accused’sright to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicialsystem if the prosecution were continued.[24] – Paragraph 11(

b) of the Charter [32] Under paragraph 11(b), persons brought before the courts are protected against an infringement of the rights to liberty, securityof the person, and the possibility of making full answer and defence that may result from an unreasonable delay in concluding thecriminal trial.[25] On page 801 of his judgment in Morin, Sopinka J. adds the following explanations:

Paragraph 11(

b) protects the right to security of the person by trying to decrease anxiety, preoccupation, and stigmatization to whichparticipation in this criminal proceedings gives rise. It protects the right to liberty because it seeks to reduce exposure to restrictions onliberty that result from imprisonment before trial and restrictive conditional release. Regarding the right to a fair trial, it is protected bythe attempt to ensure that proceedings take place while the evidence is still available and recent. [33] When trials are delayed, justice may be denied.[26] The objective of this right is to accelerate trials and reduce harm, not toavoid trials on the merits.[27] [34] Moreover, paragraph 11(

b) includes a collective or social right. In R. v. Askov, (SCC), [1990] 2 S.C.R. 1199 at1219, Cory J. explains that there are two components to the interests of society: First, there is a collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law.Second, those individuals on trial must be treated fairly and justly.

Speedy trials strengthen both those aspects of the community interest. [35] In short, a delay in rendering justice is experienced as a frustration by both society and the offender who has a desire to knowwhat his or her fate will be as quickly as possible.

The importance of swiftness in a criminal trial recalls the French adage, "Le temps quipasse, c'est la vérité qui s'enfuit" [translation: As time passes, truth flees.] In the same vein, the obligation to proceed without unduedelay in criminal cases is expressed in the English maxim: "Justice delayed is justice denied." Computation of the delay [36] In Morin, supra, at 787–788, Sopinka J. set out a series of factors to be considered by courts of first instance when ruling on anapplication under sections 11(

b) and 24(1) of the Charter. 1. the length of the delay; 2. the 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; and 4. prejudice to the accused. [37] Finally, it is worth quoting the remarks of Sopinka J. in Morin, whereby the general analytical method "is not by the applicationof a mathematical or administrative formula but rather by a judicial determination balancing the interests which the

section [11(b)] isdesigned to protect against factors which either inevitably lead to delay or are otherwise the cause of delay".[28] How should prejudice be evaluated? [38] How can it be established that an accused has suffered prejudice caused by undue delay in the criminal process? In Askov,supra at 17, the Court explains that there is a presumption of prejudice when the delay is too long. The prosecution may, however, bringevidence to the contrary to rebut the presumption of prejudice.

The applicant himself may also bring concrete evidence as to prejudicecaused by an unreasonable delay in the criminal process: There is a general, and in the case of very long delays an often virtually irrebuttable presumption of prejudice to the accused resultingfrom the passage of time. Where the Crown can demonstrate that there was no prejudice to the accused flowing from a delay, then suchproof may serve to excuse the delay.

It is also open to the accused to call evidence to demonstrate actual prejudice to strengthen hisposition that he has been prejudiced as a result of the delay. [39] In Morin at 801, Sopinka J. reiterates the teachings of the Court in Askov regarding the presumption of prejudice when the delayis too long. ... in an individual case, prejudice may be inferred from the length of the delay.

The longer the delay the more likely that such aninference will be drawn. [40] Moreover, at page 802 of Morin, Sopinka J. qualified the comments in Askov by ruling that the accused himself or herself maybe required to demonstrate the existence of prejudice: Apart, however, from inferred prejudice, either party may rely on evidence to either show prejudice or dispel such a finding. Forexample, the accused may rely on evidence tending to show prejudice to his or her liberty interest as a result of pre-trial incarceration orrestrictive bail conditions.

Prejudice to the accused's security interest can be shown by evidence of the ongoing stress or damage toreputation as a result of overlong exposure to "the vexations and vicissitudes of a pending criminal accusation", to use the words adoptedby Lamer J. in Mills, supra, at p. 919.

Conversely, the prosecution may establish by evidence that the accused is in the majority group who do not want an early trial and thatthe delay benefited rather than prejudiced the accused. Conduct of the accused falling short of waiver may be relied upon to negativeprejudice. As discussed previously, the degree of prejudice or absence thereof is also an important factor in determining the length ofinstitutional delay that will be tolerated.

The application of any guideline will be influenced by this factor. [41] In Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3, Cromwell J. reiterates the comments of Sopinka J. in Morin wherebyprejudice may be presumed because of the length of the delay: The question of prejudice cannot be considered separately from the length of the delay. As Sopinka J. wrote in Morin, at p. 801, even inthe absence of specific evidence of prejudice, “prejudice may be inferred from the length of the delay. The longer the delay the morelikely that such an inference will be drawn".

Here, the delay exceeded the ordinary guidelines by a year or more, even though the casewas straightforward. Furthermore, there was some evidence of actual prejudice and a reasonable inference of a risk of prejudice. [42] Ultimately, the Court must evaluate the weight or significance to be granted the different factors listed in Morin, including thereasons for the delay and the prejudice suffered by the applicants because of undue delays. It must then weigh these factors againstsociety's interest in proceeding on the merits.

In this case, the Court is primarily concerned with the length of the institutional delay andthe consequent prejudice suffered by the applicants. Application Did the repudiation of the negotiated agreement violate the rights of the applicants under

section 7 of the Charter? Evidentiary burden [43] In Nixon, the Supreme Court states that courts should not consider the reasons underlying acts flowing from the exercise ofprosecutory discretion if they cannot base themselves on sufficient evidence.[29] Evidence that a plea agreement had been reached andthen repudiated by the prosecution meets the first test. [44] In this case, the prosecution maintains that there was no agreement on a negotiated settlement. At best, there were talks leadingto a proposal, which the attorneys undertook to study and submit to their superiors.

Without a factual basis, it argues, the Court cannotconsider the allegation of abuse of process. Was there an agreement? If so, was the agreement rejected after the intervention of the Ministère du Revenu? [45] For the applicants, the allegation of ministerial mismanagement is based on comments made by one of the lawyers for theprosecution at the pre-trial conference before Jean-Pierre Boyer J. on June 23, 2011.

This was the trial management conference, we mayrecall, at which the parties informed the Court that the sustained efforts to negotiate an agreement had failed and that the trial shouldtherefore proceed: [translation] Mtre Carbonneau (for the applicants): Unfortunately, the talks have hit a snag. My colleagues, the Crown attorneys, have done their best,but someone higher up has decided that the offer was rejected. The Court: Who rejected the offer?

Mtre Arel (for the prosecution): (Sic) Actually, at our level, the attorneys, actually, we are a certain... it goes up to the deputy ministerwhen we have a settlement that is a little special in this way Mtre Dansereau and I had to go upstairs, to a level above us, and the offerwas refused. [46] During this pre-trial conference, the parties briefly described the content of the proposal that had been rejected. In short, theagreement provided that the charges under the tax laws would become fraud charges under the Criminal Code.

For the applicants, theadvantage was twofold: (1) unlike the tax provisions, the Criminal Code does not set out a minimum fine; (2) it offered the possibility ofserving a sentence in the community.

The performance of such an agreement would presuppose taking steps with the Director ofCriminal and Penal Prosecution for an ad hoc attorney to be named or for DCPP counsel to assess the evidence with a view to institutingproceedings for breaching the Criminal Code. [47] The prosecution’s submission that no final agreement had been reached are supported by the deposition of Mtre Alain-Françcois Meunier, director of the legal department of the Agence du Revenu du Québec.

In 2011, he was the superior of the lawyersacting as counsel for the prosecution in the cases at issue. [48] Mtre Meunier's deposition essentially consists of a will-say document filed as evidence by admission of the parties.[30] The willsay explains Mtre Meunier's involvement in the negotiations, as well as the reasons that led to the rejection of the proposal. For a betterunderstanding, the salient parts of this document are reproduced here:[31] 1. On June 6, 2011, he met with Mtre Stéphanie Arel and Mtre Michel Dansereau (the two prosecuting attorneys in this case) to discussa proposal.

The two attorneys explained the circumstances and content of the file. Among other things, he notes that Mtre Arel and MtreDansereau did not make any recommendations about whether he should accept or refuse the proposal. 2. In light of the content of the proposal, the first issue was whether these attorneys had the capacity to prosecute for Criminal Codeoffences. They could not do so unless they were named as ad hoc counsel for penal and criminal prosecution. 3. He found that the proposal was unusual, considering that it required applying to the Director of Criminal and Penal Prosecutions

either to appoint ad hoc counsel or to have the evidence assessed by counsel for criminal and penal prosecutions. He was also uncomfortable with the idea of Revenu Québec entrusting another agency (the DCPP) with the responsibility of handling one of its penal cases. He wondered what advantages the proposed settlement offered Revenu Québec, given its responsibility to apply tax laws to offenders. In this case, the penalty under the tax laws was fines of $10 million to $20 million, with or without a maximum of two years' imprisonment. 4.

On June 16, 2011, he attended a meeting with Mtre André Larivière (tax litigation director), Mtre Arel and Mtre Dansereau, during which the decision was made to refuse the settlement proposal. 5. To his knowledge, at no time did Mtre François T. Tremblay, vice president and director general of Revenu Québec’s Legislation, Investigations and the Enterprise Registry at the time, intervene in this file.

Moreover, the settlement offer was not submitted to him. [ 49 ] In short, the settlement offer was refused because (1) it was difficult to carry out and (2) its acceptance would have run contrary to the interests of society (given the scope of the fraud). Even more important, at least with regard to the decision that the Court must make, the settlement offer was never submitted to the Ministère du Revenu for approval. [ 50 ] For the following reasons, the Court is of the view that there was neither an agreement nor interference with the negotiations on the part of the Ministère du Revenu. 1.

In Mtre Arel's comments, it is difficult to determine what role the deputy minister of Revenue might have played in the failure of the negotiations. The reference to the deputy minister is vague. What is more, this reference to the deputy minister was made in barely intelligible language. The Court had to listen to the recording of the proceedings numerous times to be able to understand Mtre Arel's remarks. 2. The remarks of the applicants themselves during the pre-trial conference attest that there was no agreement but, at most, negotiations.

To this effect, it is worth recalling that Mtre Carbonneau told the court that [ translaton ] "the talks have hit a snag". The defence made no mention of an agreement that had been accepted and subsequently repudiated. 3. To counter the claims of the applicants (based on the vague and imprecise remarks of Mtre Arel), the prosecution filed, through admissions, the testimony of Mtre Meunier.

This narrative is unequivocal: there was no agreement and, moreover, at no time did the Ministère du Revenu intervene in these files. [ 51 ] In short, the applicants were wrong to rely on the term "repudiation" to support their application in this case. It would be more accurate to characterize the course of the discussions on either side as "proposal" than "repudiation". Since there was no agreement, they cannot criticize the prosecution for failing to respect it.

Since the applicants have not discharged their initial burden, there is no need to go any further and consider the reasons for the decision to refuse the applicants' proposal. [ 52 ] In any event, whether their decisions bear on the "repudiation" of an agreement or the "refusal' of a settlement offer, they concern the nature and extent of the penal prosecutions and therefore constitute actions arising from the exercise of this discretionary power.

As stated in one of the above sections, these actions are subject to judicial review only in the event of abuse of process. [32] [ 53 ] The applicants have submitted no evidence capable of grounding a conclusion, on a balance of probabilities, that there was infringement of the rights protected by

section 7 of the Charter . The applicants have never alleged bad faith or reprehensible conduct on the part of counsel for the prosecution. On the contrary, they went so far as to point out the efforts of counsel for the prosecution to negotiate a settlement. Finally, no evidence was tendered to demonstrate that the withdrawal of the offer undermined the fairness of the trial. As stated in the written arguments of the prosecution: [ translation ] "After the refusal, the applicants found themselves in exactly the same situation they were in before they made their proposals.

The charges against them remained the same, and they neither personally participated in the negotiations nor were led during these negotiations to make any concessions that could be detrimental to them at trial. [33] – Can pre-charge delays be considered in a claim under

section 7 of the Charter , which protects the applicants against violations of their right to life, liberty, and security of the person? [ 54 ] We note that pre-charge delays are not included in the assessment of delays referred to in paragraph 11(

b) of the Charter . P re- charge delays are taken into consideration, however, when it is shown that they have resulted in actual prejudice to the right to make full answer and defence or to the integrity and fairness of the trial. [ 55 ] With regard to the prejudice to their right to make full answer and defence, the applicants affirm that some of the witnesses are no longer available. Some cannot be found, while others are deceased. [ 56 ] First, the following remarks regarding unavailable witnesses are in order: 1. The passage of time does not explain the disappearance of some of the witnesses.

On the contrary, it appears that these witnesses fled for the purpose of avoiding any participation in the penal proceedings. 2. The applicants have never explained how these witnesses – the ones who have disappeared as well as the ones who have died – could have helped them mount a defence. The applicants simply make vague claims of having suffered prejudice, which, at best, are hypothetical or speculative. 3. The applicants bear the burden of demonstrating that the pre-charge delay infringed their right to make full answer and defence or undermined the integrity and fairness of the trial.

They must bring tangible evidence of prejudice based on facts, not conjecture. The Court, presented with only vague claims of prejudice, has no hesitation in finding that the applicants have not discharged their burden.

[ 57 ] Under

section 7 of the Charter , however, a small, residual category of abusive action exists which does not affect trial fairness but still undermines the fundamental justice of the system. [34] In this case, can the delay in filing charges be considered abusive action that contravenes fundamental notions of justice, thus undermining the integrity of the judicial process? [ 58 ] Twenty-five months passed between May 18 and 19, 2006, when the searches were carried out, and June 27, 2008, when the charges were laid.

This time period can be explained in large part by the fact that the examination of the documents and accounting records was entrusted to a single person. During this period, Mr. Hamel devoted most of his time to this task. [ 59 ] During this period of [ translation ] "investigation," the accused suffered actual prejudice: (

i) anxiety and uncertainty about the next step in the judicial proceedings and (ii) economic loss due to the suspension of the applicants' businesses and the blocking of their bank accounts. Delaying the filing of the charges only increased the prejudice the applicants suffered. [ 60 ] Despite the prejudice suffered by the applicants, the Court does not find that the conduct of the prosecution is so abusive as to infringe the rights protected by

section 7 of the Charter . Certainly, more resources could have been put at the investigator's disposal to speed up the examination of the seized items. Nothing in the evidence, however, indicates that the prosecution acted in bad faith. [ 61 ] In any event, the delay in instituting penal proceedings is not "so flawed" as to justify a stay of proceedings. It is only in "exceptional" and "relatively very rare" cases that past misconduct is "so egregious that the mere fact of going forward in the light of it will be offensive". [35] [ 62 ] In this case, the applicants have not clearly shown the existence of improper motives, bad faith, or

an act so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed. [36] [ 63 ] Thus, in the cases at issue, the Court finds that the pre-charge delays cannot provide the basis of a motion for a stay of proceedings under sections 7 and 24 of the Charter . Was the constitutional right of the accused to stand trial within a reasonable time, as protected under paragraph 11(b), violated by the accumulation of delays since the filing of the informations?

Explanation of delays [ 64 ] The time between the laying of the charges and the hearing of the application for a stay of proceedings is 56 months (June 2008 to February 2013). A prospective delay of 20 months should also be added (the trial will be heard only in October of 2014). This period is sufficiently long to raise doubts as to its reasonableness and, consequently, the reasons for the delay merit examination. Inherent delays [ 65 ] All cases involve delays.

The more complicated a case, the longer it will take counsel to prepare for trial and for the trial to be conducted once it begins. [37] The delays inherent to such cases will serve to excuse longer delays than for cases which are less complex . [38] In the overall computation of the delays, inherent delays are characterized as neutral; in other words, they cannot be attributed to either the defence or the prosecution. [ 66 ] In these cases, the prosecution’s evidence is voluminous.

The Court is of the view that the hearing of the evidence must take into account its complexity (as to the facts, the documents to be read, the number of witnesses). Moreover, the Court must consider that counsel for the applicants already have very busy schedules. They cannot be asked to modify their schedules and devote themselves solely to the examination of these files. [ 67 ] In this case, which delays can be characterized as inherent to the nature of the files?

Taking the complexity of the files into account, this period must include the time between the filing of the charges on June 27, 2008, and the (nearly complete) disclosure of the evidence on February 18, 2009. With regard to the procedural history, it should be recalled that on October 29, 2008, the first pro forma date, the files were postponed so that disclosure could be completed.

On February 18, 2009, the second pro forma date, the disclosure of the evidence was complete except for the handwriting expert report. [39] On that date, the applicants did not object to the request for postponement and even stated their intention to have talks to try to settle the file.

Actions of the Applicants [ 68 ] The first factor to consider is whether the applicants waived their right to raise the time requirements, either in whole or in part. [ 69 ] Waiver requires advertence to the act of release rather than mere inadvertence. [40] On this subject, the Court adopts as its own the comments of Sopinka J., in Morin at 790, quoted here: Waiver requires advertence to the act of release rather than mere inadvertence.

If the mind of the accused or his or her counsel is not turned to the issue of waiver and is not aware of what his or her conduct signifies, then this conduct does not constitute waiver. Such conduct may be taken into account under the factor "actions of the accused" but it is not waiver. As I stated in Smith , supra , which was adopted in Askov , supra , consent to a trial date can give rise to an inference of waiver.

This will not be so if consent to a date amounts to mere acquiescence in the inevitable. [ 70 ] In the view of the Court, determining whether the applicants have waived their right to raise the time requirements involves a two-stage analysis: the first period prior to June 10, 2010 (the date on which the Court was informed that the parties were ready to proceed and a trial management conference was scheduled for September 29, 2010), and a second period following this date (essentially,

the period representing the institutional delays). [ 71 ] Regarding the period prior to June 10, 2010, there is no doubt that the applicants explicitly and implicitly waived raising the time periods. This waiver can be inferred from the following facts: 1. On a few occasions, they expressly waived the time periods. At the time of the waivers, they were represented by counsel. 2. On several occasions, the files were postponed without any objection from the applicants.

It should be noted that, more often than not, the pro forma requests for postponement were made by the applicants (to change counsel, to wait for a decision by the Court of Appeal, and to negotiate a settlement). We shall return to this issue in the

section concerning the actions of the applicants. 3.

The applicants never expressed any concern regarding the length of the delays before the service of the motion for a stay of proceedings in late October of 2011, which was four months after the date on which the parties were informed that the trial (originally scheduled for October and November of 2011) had been cancelled. [41] [ 72 ] As for the period following June 10, 2011, the applicants never waived the time periods, either explicitly or implicitly. [42] It should be noted that, on October 11, 2011, during a pre-trial conference, the applicants filed their motions to stay proceedings and affirmed that they wished to proceed as quickly as possible.

Delays attributable to the applicants [ 73 ] In Morin , Sopinka J. explains that certain "actions of the accused" can cause delays, such as a request for a continuance or the time required to retain the services of a different lawyer. There may be cases where the Crown demonstrates that the goal of the "actions of the accused" was to delay the trial. [ 74 ] In the cases at issue, it is worth noting that the applicants have sought and obtained several "pro forma" postponements. To justify these requests, they raised the following grounds: 1.

Waiting for a decision by the Court of Appeal As noted above, the applicants contested the lawfulness of the searches and seizures carried out by the Ministère du Revenu in May of 2006. Unhappy with the decision of the Superior Court, they brought an appeal to the Court of Appeal. According to the applicants, this much-awaited decision [ translation ] "could settle everything". The judgment of the Court of Appeal, which upheld the decision of the Superior Court, was rendered on July 8, 2010. Unfortunately, the Court of Appeal's decision did not lead to the final settlement of the files.

On September 29, 2010, during a pre-trial conference, the parties agreed to

schedule a hearing lasting nineteen days, which was to begin on October 4, 2011. The judge presiding the hearing on September 29 was even surprised that the trial date was being set, given earlier statements about the importance of the Court of Appeal's decision to the outcome of the proceedings. The Court finds that there were five postponements sought on the grounds that the decision of the Court of Appeal was pending. These postponements can be attributed to actions of the applicants. 2.

Postponements caused by the substitution of counsel The Court finds that two postponements were sought by new counsel for the applicants so that they could become familiar with the evidence in the files. 3. Postponements to negotiate an agreement During the judicial proceedings, several postponements were sought by the applicants on the grounds that they wished to negotiate a settlement with respect to the files. The Court cannot blame the applicants for their efforts to conclude a negotiated agreement. Nevertheless, the numerous postponements to further settlement talks inevitably led to longer delays.

They must take responsibility for the consequences. In any event, the applicants cannot complain about prejudice caused by the settlement talks. On the contrary, during this negotiation period, they tried to obtain the following benefits: rapid settlement of the files, reduction in costs, and (there is little doubt) the mitigation of the penalties imposed in such cases. Actions of the Crown [ 75 ] In this case, the prosecution is blameless. The prosecution even demonstrated its resolution to proceed swiftly by objecting to the request for postponement made by the applicants on June 9, 2009.

It should be recalled that the applicants sought a postponement on the grounds that the decision of the Court of Appeal could influence the settlement of the file. Notwithstanding the arguments of the applicants, the prosecution stated that the Ministère du Revenu wished to [ translation ] "move forward". First, the prosecution noted that there had already been six pro forma postponements of the files.

It went on to argue that another pro forma postponement would change absolutely nothing because, even if the decision of the Court of Appeal did not favour the prosecution, the judicial proceedings would not be cancelled. [ 76 ] According to the applicants, the delay can be explained in part by the failure of the prosecution to disclose all of the evidence promptly. Let us recall that, on February 18, 2008, the prosecution announced that the disclosure of the evidence was complete, save for the handwriting expert report. This expert report was not given to the applicants until December 1, 2009.

In the view of the applicants, it was unthinkable for a trial date to be set before becoming familiar with all of the evidence. Therefore, the prosecution must take

responsibility for the delays caused by its tardiness in disclosing the evidence. [77] Generally speaking, it is entirely normal for the accused to wait for all of the evidence to be disclosed before setting a trial date.For the reasons that follow, however, the Court is of the opinion that the failure to disclose the evidence does little to explain the delays: 1. During the proceedings, the applicants raised the lack of a handwriting expert report only twice to justify postponement.

As notedabove, their main arguments were: (1) the fact that they were waiting for a decision by the Court of Appeal and (2) the possibility of anegotiated settlement. The other grounds they raised when seeking postponements should also be mentioned: they include the change ofcounsel and the absence of counsel for health reasons. 2. Despite the incomplete disclosure of the evidence, the applicants nevertheless waived the time requirements. 3. The applicants expressed their intention to successfully negotiate a settlement despite the incomplete disclosure of the evidence. 4.

Obviously, the handwriting expert report was of little importance to the applicants' defence. To this effect, it is worth noting thatwhen Mtre Arsenault appeared for the applicant Mr. Koumoutsakis, he stated before the Court that his mandate was to consider thevalidity of the search warrants and the delivery reports. In short, he stated that the applicants' defence was based on the validity of thesearches. The handwriting expert report contributed very little to the applicants' defence.

Institutional delays [78] Institutional delay is the period that starts to run when the parties are ready for trial but the system cannot accommodatethem.[43] [79] In Askov, supra, the Supreme Court established that a delay of six to eight months between committal for trial and trial was "theoutside limit of what is reasonable".[44] In that case, the Court decided that a delay of nearly two years after the preliminary inquiry wasclearly excessive. [80] In Morin, Sopinka J., reiterated the teaching in Askov with respect to longer delays before trial.

He also drew the followingdistinction between delays in a trial before a provincial court (no preliminary inquiry) and a trial following a committal for trial. It is appropriate for this Court to suggest a guideline of between 8 and 10 months for institutional delay in Provincial Courts. A guidelinewith respect to institutional delay after committal for trial in the range of 6 to 8 months was suggested in R. v. Askov, (SCC), [1990] 2 S.C.R. 1199, and is still apposite.[45] [81] Nineteen years later, in R. v.

Godin at paragraph 5, Cromwell J. reiterates Sopinka J.'s comments in Morin pertaining to theguidelines for institutional delays. ...it will be helpful to place them in the context of the guidelines set out in Morin. Those guidelines refer to periods of 8 to 10 months forinstitutional delay in the provincial courts and of 6 to 8 months from committal to trial, for a total guideline period of between 14 and 18months. [82] This guideline is not mandatory.

It is intended to be a general guide for trial courts, which no doubt have to adjust it to take localconditions into account.[46] [83] In this case, the dispute centres on the institutional delays. Considering the breadth of the files (complexity of the evidence andthe number of witnesses) and the limits of institutional resources (lack of judges), were the institutional delays justified? [84] The institutional delays began to run on June 10, 2010.

On that date, the Court was of the view that the records were perfectedand that the parties were ready to proceed (notwithstanding the still-pending decision of the Court of Appeal). The cases were postponedfor a management conference on September 29, 2010. Thus, in the computation of delays, a period of three and a half months attributableto the prosecution should be added. [85] On September 29, 2010, the parties scheduled a 19-day trial to begin on October 4, 2011.

Regardless of the manner ofcomputing the delays (either 16 months starting on June 10, 2010, or 12 months and a week if the management conference on September29, 2010, is taken as the starting point), the date scheduled for the trial exceeds the guidelines suggested by the Supreme Court. In lightof the complexity of the files and the institutional limitations, however, this delay cannot be considered unreasonable. [86] While awaiting the date of the trial, the files were referred to numerous management conferences.

On several occasions, themanagement conference was postponed in the hopes that the parties would reach an agreement. Since the date of the trial was alreadyset, these postponements did not prolong the delays any further. Fault for the said postponements should not be attributed to either party. [87] On June 23, 2011, during a pre-trial conference, the coordinating judge stated that he had to cancel the trial because there wasno judge to hear a case that would last such a long time. The whole was postponed until October 26, 2011 so that a managementconference could be held.

On that date, the trial was scheduled to last 34 days, beginning on February 4, 2013. [88] Unfortunately, during the pre-trial conference on December 21, the coordinating judge once again had to announce that the trialwas cancelled because there were no judges available. [89] During the hearing of the application for a stay of proceedings before the undersigned on February 13, 2013, the parties had notyet set a trial date. According to projections, a trial of this size (34 days of trial) could not begin until October 2014. [90] Here is a

summary of the institutional delays:

- From June 2010 to February 2013: 31 months - A prospective delay of 20 months between February 2013 and October 2014 should also be added; - In total, the institutional delays add up to 51 months. [91] Although the first date set for the trial was not unreasonable (given the complexity of the case and the limited resources of theCourt), the second date (February 2013) greatly exceeded the guideline suggested by the Supreme Court. A debate on the reasonablenessof this delay is in order.

At most, this delay can be justified by the complexity of the files and the limited resources of the Court. [92] However, at a certain point, the delays exceed the acceptable range and the explanations that once justified them are no longersufficient. In this case, the final straw is the anticipated 20-month delay. The scarcity of institutional resources should not be anacceptable excuse for unreasonable delays.

As Sopinka J. explains in Morin, supra at 795: While account must be taken of the fact that the state does not have unlimited funds and other government programs compete for theavailable resources, this consideration cannot be used to render s. 11(

b) meaningless. The Court cannot simply accede to thegovernment's allocation of resources and tailor the period of permissible delay accordingly. The weight to be given to resourcelimitations must be assessed in light of the fact that the government has a constitutional obligation to commit sufficient resources toprevent unreasonable delay which distinguishes this obligation from many others that compete for funds with the administration ofjustice. There is a point in time at which the Court will no longer tolerate delay based on the plea of inadequate resources. [93] To paraphrase Cory J.'s warning in Askov, the paragraph 11(

b) guarantee must not be made meaninglessness by using a lack ofinstitutional resources to justify significant delays.[47] The government should allocate sufficient funds to institutional resources to meetits constitutional obligation under paragraph 11(

b) of the Charter.[48] [94] Along the same lines, the Court adopts as its own the remarks of Jacques Ghanimé J. of the Municipal Court of Montreal in R.v. Tran, 2012 QCCM 81 at para. 65, where he writes: [translation] The governments that created the courts must meet their needs – those that arise under the Charter in particular – and see to theappointment of a sufficient number of judges to meet the Charter requirements. [95] In these files, it is clear that the government did not meet its obligation to assign the resources necessary to fulfill its obligationsunder paragraph 11(

b) of the Charter. To paraphrase Sopinka J. in Morin, when faced with excessive delays, the Court can no longertolerate explanations based on inadequate resources. Prejudice [96] Prejudice is an element essential to the existence of a violation under paragraph 11(

b) of the Charter. The burden of proving theprejudice is on the accused, although it should be noted that, in Morin, supra, Sopinka J. remarks on the existence of a presumption ofprejudice when the delay is deemed to be excessive.[49] [97] Obviously, the Crown can always rebut this presumption by presenting evidence showing that the accused is part of themajority who does not wish to stand trial in the near future and that a delay was not a prejudice to him but an advantage.[50] [98] In the cases before us, the applicants cannot allege that they suffered prejudice with regard to the fairness of the trial.

As statedabove, the applicants were unable to demonstrate that the unavailability of certain witnesses affected their ability to defend themselvesagainst the charges. Let us recall that the applicants bear the burden of persuading the Court that their ability to make full answer anddefence has been weakened. Aside from a few vague remarks from the applicants, there is no direct evidence presented to this effect. [99] Similarly, the applicants cannot allege prejudice to their liberty rights.

Since the beginning of the penal proceedings, theapplicants have not been subjected to any restriction of their liberty. [100] The prejudice suffered relates essentially to security of the person. This protection seeks to reduce the anxiety, vicissitudes andstigmatization arising from penal proceedings, as well as any economic prejudice suffered by the applicants. Have the applicantssuccessfully proved that this prejudice exists? [101] Based on the testimony of the Khoury brothers, the Court finds that the following prejudice has been suffered: 1.

Psychological stress In general terms, these two applicants described their fears and anxieties as a result of their uncertain futures. First, they expressed theirworry or concern about the sentence the Court might impose on them in the event of a guilty verdict. Indeed, the fines sought by theprosecution are impressive: each applicant is liable to a fine between $10 million and $20 million. Since it is a

summary prosecution, themaximum prison sentence is only two years. Second, their worry or uncertainty with regard to the future has weakened their motivation to start a new company. What is the point ofbuilding a new business, they state, if imprisonment or an enormous fine awaits? According to them, they have had to refuse severalbusiness opportunities. Since the charges, the criminal proceedings have taken up an excessive amount of space in their lives. In addition to the daily stresscaused by the charges, they have also had to deal with multiple appearances in Court and numerous meetings with their attorneys. 2. Financial prejudice

Economic loss following the suspension of the applicants' businesses and the blocking of their bank accounts According to the applicants, their borrowing capacity has been diminished by the judicial proceedings. With no access to credit, they do not have the financial resources to start another business. They are currently earning their livings as simple employees. Lawyers' fees Although the applicants have not specified the overall fees, there is every reason to believe that these amounts are considerable.

The fees disbursed are certainly proportionate to the complexity of the files (volume of evidence to be considered and the length of the time periods). The time alloted by counsel to prepare for trial (which has been cancelled on two occasions) should also be included. With respect to these fees it should be noted that counsel for the defendants, Mtre Arsenault and Mtre Carbonneau, will not be available for trial in October 2014 because they are tied up with another very long case. The Court understands that the attorneys carved out a number of weeks in their schedules for the trial in the cases at issue.

They were ready to proceed in October 2011 and in February 2013. They cannot be expected to devote their entire practice to defending the applicants and to be available at the first dates suggested by the Court. The applicants will be required to find themselves new counsel, who will not be familiar with all of the facts on the record. Inevitably, the applicants will have to multiply the number of meetings with their new counsel and, no doubt, will thereby incur additional professional fees. [ 102 ] As for the applicant Mr. Koumoutsakis, he has filed no concrete evidence of prejudice.

His counsel merely argues that there was a presumption of prejudice due to the excessive length of the criminal proceedings. Obviously this presumption was also argued by the Khoury brothers in support of their claims of psychological and economic prejudice. [ 103 ] The Court shares the view of the applicant that the delay itself is sufficient to conclude that they have suffered prejudice. To reiterate the comments of Béliveau J. of the Superior Court in Laval (City) v. Gagnon ,

(1997) A.Q.

No. 1837 : [ translation ] "This is not a close case where the delay as such only slightly or reasonably exceeds the delays suggested by the Supreme Court. [51] [ 104 ] The Court also believes it appropriate to add the following comments of Béliveau J. on the rebuttal of the presumption: [ translation ] “Moreover, the prosecution has not presented evidence to the contrary which, we add, would have had to be highly persuasive given the clearly long and unreasonable nature of the delay that has passed”. [52] [ 105 ] This presumption of prejudice is added to persuasive evidence of concrete prejudice suffered by the Khoury brothers.

CONCLUSION Weighing the prejudice against the interests of society [ 106 ] The decision to grant a stay of proceedings must be based on the weighing of the prejudice suffered by the accused against the interests of society in seeing the accused brought to justice. [53] [ 107 ] Without a doubt, one part of the prejudice can be explained by the mere fact that the applicants have been charged. In this sense, their grievances are the same as those of any accused brought before the criminal courts.

In the view of the Court, however, the excessive delays in this case had the effect of unduly amplifying the prejudice they suffered. [ 108 ] The prejudice experienced by the applicants is directly related to the institutional delays. Nevertheless, the Court cannot simply accede to the government's allocation of resources and consequently find that the length of the delay is acceptable. [54] The lack of institutional resources cannot be used to render the paragraph 11(

b) guarantee meaningless. [55] [ 109 ] A habitual acceptance of this type of delay by the courts would lead to prohibitive costs preventing accused from preparing for trial and from making full answer and defence. [56] Moreover, making such delays into an acceptable standard would paralyze the proper functioning of the courts. [57] [ 110 ] In balancing the interests of the applicants against those of society, the Court adopts the comments made by Dominique Larochelle J. of the Court of Quebec in Galarneau v.

R ., 2011 QCCQ 3903 at para. 46 : [ translation ] The Court is sympathetic to the argument that society has an interest in seeing trials brought to completion, but it must remember that society also has an interest in seeing that persons accused of offences as serious as the ones in this case stand trial within an appropriate and fair time period, which is not the case here. FOR THESE REASONS, THE COURT: DECLARES that the rights of the applicants as protected by paragraph 11(

b) of the Charter have been violated; ORDERS a stay of proceedings pursuant to subsection 24(1) of the Charter .

__________________________________ SALVATORE MASCIA, J.C.Q. Mtre Michel Dansereau For the prosecution–respondent Mtre Luc Carbonneau and Mtre Jean Arsenault For the Accused–Applicants