2017 QCCQ 887, 2017 QCCQ 887

Director of Criminal and Penal Prosecutions c. Amarualik 2017 QCCQ 887 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI LOCALITY OF PUVIRNITUQ Criminal and Penal Division No. 640-01-029695-138 DATE: February 15, 2017 ______________________________________________________________________ PRESENT: THE HONOURABLE JEAN-PIERRE GERVAIS J.C.Q. ______________________________________________________________________ Director of Criminal and Penal Prosecutions Prosecutor‒Respondent v. TUAMI AMARUALIK Accused‒Petitioner ______________________________________________________________________ JUDGMENT ON A MOTION FOR A STAY OF PROCEEDINGS ( sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ [ 1 ] These are the written reasons for a decision rendered orally on January 12, 2017 with the parties present. [ 2 ] The accused, Tuami Amarualik, was to stand trial for an alleged offence of impaired driving that occurred on March 7, 2013.

Deeming the delay for his trial to be unreasonable, he asked the Court to order a stay of proceedings. [ 3 ] Hence, the Court must first determine who is responsible for the delays incurred, and then whether the delays that cannot be attributed to the accused, in one way or another, justify granting the remedy sought. [ 4 ] Regarding most of the delays under study, the parties have converging opinions; their differences have to do essentially with how to deal with the nearly one-year delay resulting from a request for postponement by the defence. [ 5 ] Here is the chronology of the various events that occurred in this case. [ 6 ] On July 25, 2013, a summons was issued alleging that the accused had operated his vehicle while his ability to do so was impaired by alcohol. [ 7 ] He appeared on September 23, 2013 and pleaded not guilty.

The case was postponed to December 4, 2013 so that he could inform the Court of his definitive position. [ 8 ] On that last date, the court did not go to the Puvirnituq community because its participants’ safety was not adequate. Consequently, the case was called at the Amos courthouse in the absence of the accused and rescheduled for February 12, 2014. [ 9 ] At that time, Mr. Amarualik asked for a trial be held, but it was impossible to give him a trial date because the known court schedule, which went to August 31 st of the same year, was complete. Hence, the case was postponed to June 11, 2014, when the new

schedule was to be available and it would be possible to set a day to proceed. [ 10 ] That is in fact what happened and, in the presence of the accused, the trial was set for February 5, 2015. [ 11 ] As one of the witnesses was at the bedside of a hospitalized relative, the accused requested and obtained a postponement. Given that no date was available, the same scenario was repeated and the case was called only on June 10, 2015, and rescheduled for trial on January 14, 2016. [ 12 ] On that date, bad weather prevented the itinerant court from going to the Puvirnituq community. Once more, this resulted in a postponement, until June 8, 2016, for the trial to be rescheduled as the court

schedule was booked. [ 13 ] Aware of the delays incurred, the parties agreed, however, to call the case again on March 15, 2016 so that it could proceed as

a priority on April 7, 2016. [ 14 ] On that date, the accused again requested a postponement because his witness was unable to speak due to what proved to be a serious illness. Satisfied with the verifications made with respect to the truthfulness of the reason given, the judge sitting at the time consented, despite the Crown’s objection, to postpone the case to the June 8, 2016 role while awaiting the new schedule. [ 15 ] It should be pointed out that the following comments were recorded in the minutes: “Renonce delay between today to June 8 and from June 8 to the trial” [ sic ]. Mr.

Amarualik’s lawyer added that, in the circumstances, it was rather difficult to refuse that such a mention be entered. [ 16 ] Once again, on June 8, in the presence of the accused, a date was determined for the trial, that is, September 29, 2016. [ 17 ] On that date, it was the Crown’s turn to request a postponement because its main witness was not available; the defence did not agree to the postponement. [ 18 ] Hence, the case was postponed to November 17, 2016, and on the same occasion, the accused announced his intention to invoke the delays incurred in this case.

The hearing of this last request was held as planned and, on January 12, 2017, through video- conferencing, the Court allowed the request and ordered a stay of proceedings, indicating that the reasons for its decision would be disclosed later, hence this judgment. [ 19 ] Therefore, at least 1211 days have elapsed, that is, 40.4 months between the issuing of the summons and the hearing of the motion on the delays. Positions of the parties [ 20 ] As indicated above, the parties have a similar viewpoint regarding most of the delays.

However, the Crown considers that the delay incurred when the court could not travel for safety reasons should be qualified as an “exceptional circumstance”, whereas the defence places it in the “other reason” category. [ 21 ] As for the year required to reschedule the case further to the request for postponement made by the defence on February 5, 2015, the prosecution considers that it must be attributed entirely to the defence, whereas the defence believes that delay already excessive.

Applicable law [ 22 ] The question of reasonableness of delays has been written about often in the past years, and even more so in recent months further to the decision rendered by the Supreme Court of Canada in Jordan , [1] which significantly modified the state of the law concerning such matters. Given that this case began prior to the decision, it is relevant to give an overview of the earlier jurisprudence. [ 23 ] Thus, two master decisions were successively rendered by the Supreme Court, namely, R. v. Askov [2] and R. v .

Morin ; [3] this last decision followed the path set out in the first while providing certain clarifications. [ 24 ] In analyzing whether the time elapsed caused the right provided for in

section 11(

b) of the Charter to be violated, the following elements must be considered: 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; and 4. prejudice to the accused. [ 25 ] While Askov , given its broader

interpretation, resulted in an avalanche of applications for a stay of proceedings for that reason, Morin gave a more restrictive meaning to

section 11(

b) of the Charter and curbed the stream of applications. [ 26 ] It should be pointed out that, regarding the length of the delay, an enquiry “should only be undertaken if the period is of sufficient length to raise an issue as to its reasonableness”. [4] [ 27 ] As for delays due to limits on institutional resources, “ this is the period that starts to run when the parties are ready for trial but the system cannot accommodate them”. [5] [ 28 ] The Court, acknowledging the problems related to the lack of resources in certain places and regional disparities, refused to apply a purely mathematical formula.

In fact, it left it up to the courts to evaluate the effect of those deficiencies on the increase in delays and the need to intervene. At the same time, it was careful not to require anyone to hold a trial within unrealistic time limits given the

funds, personnel and reasonably available means. [ 29 ] However, the Court affirmed that “ [t]here is a point in time after which the Court will no longer tolerate delay which results from resource limitations”. [6] [ 30 ] Specifying also that this must not be considered in any way as a form of limitation period, the Court nonetheless endorsed the comments of Cory J. in Askov , when he said that “ a period of delay in a range of some six to eight months between committal and trial might be deemed to be the outside limit of what is reasonable”. [7] [ 31 ] Now we have Jordan , which proposes a new way of assessing delays and their reasonableness.

The greatest revolution is due mainly to the fact that the Court now imposes a time limit beyond which a delay is presumed to be unreasonable. [49] . . . For cases going to trial in the provincial court, the presumptive ceiling is 18 months from the charge to the actual or anticipated end of trial. For cases going to trial in the superior court, the presumptive ceiling is 30 months from the charge to the actual or anticipated end of trial. We note the 30-month ceiling would also apply to cases going to trial in the provincial court after a preliminary inquiry.

As we will discuss, defence-waived or -caused delay does not count in calculating whether the presumptive ceiling has been reached — that is, such delay is to be discounted. [8] [ 32 ] If the delay exceeds the ceiling, the Crown must justify it by establishing the presence of exceptional circumstances. [81] To be clear, the presence of exceptional circumstances is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling.

As discussed, an exceptional circumstance can arise from a discrete event (such as an illness, extradition proceeding, or unexpected event at trial) or from a case’s complexity. . . . [ 33 ] As for the impact of institutional delays, even though dissenting judges remained in the path set out in Morin , the majority considered that: “Nor can chronic institutional delay be relied upon [to justify delays after the ceiling is breached]”. [9] [ 34 ] However, the Court considers that it is essential to avoid a situation similar to what happened when Askov was rendered, where a very significant number of cases were the subject of stays of proceedings, as the delays had suddenly become unreasonable.

Consequently, the new framework of analysis should be applied to the cases already in the system, which includes the presumptive ceiling, while being more flexible in allowing a culture shift, and also implementing resources and means in order to accelerate the processing of cases. [10] [ 35 ] In that regard, the Supreme Court acknowledges that exceptional transitional measures may apply in certain situations.

That is the case, among others, when the Court is convinced that the parties acted in compliance with the law as it stood previously. [ 36 ] Also, the inadequacy of institutional resources may have an impact that must be taken into account to avoid the “ Askov effect” from reoccurring and stays of proceedings from being granted en masse . [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. . . . [11] [ 37 ] From a different perspective, regarding the defence’s waiving the delay, this is a question that, in certain cases, may prove to be delicate, and here is essentially what should be born in mind. [ 38 ] Generally, a waiver must be clear and unequivocal.

Moreover, it is up to the prosecutor to establish, on a balance of probabilities, that an accused has waived his or her right, in whole or in part, under

section 11(

b) of the Charter . [12] Moreover, an accused’s failure to express disagreement when a case is postponed to a distant date is not a systematic waiver of delays that are too long. [ 39 ] Thus, in Corriveau c. La Reine , [13] the Superior Court refused to attribute to an unrepresented accused, who refused to set a trial date, the passage of time as the accused was unable to properly understand the consequences of his decision. Here is what the Court said: [TRANSLATION] 54. Under these particular circumstances, it has not been established on a balance of probabilities that Mr.

Corriveau truly understood that the answer he gave the coordinating judge constituted a waiver, even partial, of a constitutional right. 55. The Court concludes that it was not proven that Mr. Corriveau waived, in a clear and unequivocal manner, whether explicitly or implicitly, his constitutional right to be tried within a reasonable time . [ 40 ] From a different perspective, although an accused’s silence regarding a possible postponement may be considered acquiescence, this is not absolute, as the Court of Appeal said when the defence only gives in to the inevitable. [TRANSLATION] 114.

It is true that the respondent generally has the onus of establishing, on a balance of probabilities, that the actions of an accused constitute a waiver of the right guaranteed under

section 11(

b) of the Charter , but if the concern of the accused or the accused’s lawyer regarding a postponement of the case is not expressed, this amounts to, in the absence of evidence that the consents represent acquiescence to the inevitable, a waiver by the accused of the resulting delay. [14]

[ 41 ] Lastly, in Charlebois c . La Reine , [15] the Superior Court considered that an accused who complies with the

schedule of available dates is not as a result deprived of the right to invoke delays. [TRANSLATION] 131. There is no evidence that the appellant waived certain delay periods. The accused’s consent to the dates available for the hearing of the motions by the Court of Québec does not constitute a waiver of delay. [ 42 ] What conclusions are to be drawn from the application of these principles to the case at bar?

Analysis [ 43 ] Even though the parties have a common view and there is no dispute in that regard, the Court still wishes to point out that it agrees with their point of view concerning the delay resulting from the fact that the itinerant court could not travel in the northern territory because of weather conditions, and that this constitutes an exceptional circumstance. The court’s travels constantly depend on the weather, which regularly disrupts its activities.

These uncertainties, against which no one can do anything, must be discounted. [ 44 ] In this case, weather conditions prevented the trip that was scheduled for January 14, 2016 and delayed the progress of the case for 61 days, a delay that must be set aside. [ 45 ] As for the trip that was cancelled for safety reasons, resulting in a 72-day delay in the progress of the case, the situation is rather singular. [ 46 ] It bears repeating that the work of the itinerant court takes place in unusual conditions, as it is subjected to the harshness of the environment and dependent on available resources, which are sometimes insufficient. [ 47 ] When the court did not go to Puvirnituq on December 2, 2013 for safety reasons, it was an initiative of the D.C.P.P. representatives, to which all participants, including the judiciary, agreed without reservation, if not supported fully. [ 48 ] For several years, safety issues have been reported to the authorities, who have been slow to intervene, so that, on more than one occasion, incidents that could have had very serious consequences occurred.

It is therefore quite difficult to qualify a postponement due to safety issues as an “exceptional circumstance” given that it is the result of the failure to act by the authorities in place, although duly notified of the need to do so. [ 49 ] This delay must be categorized as “institutional”, although it is unfair, to a certain extent at least, for the defence to benefit from it and for the Crown to be penalized, whereas it is precisely the lawyers for the Crown who reported the situation.

The effect is pernicious, but if the authorities had acted more quickly further to the recriminations made by the itinerary court participants, this situation would not have occurred. [ 50 ] Hence, the main debate has to do with the delay incurred further to the defence’s request for a postponement, due to the health condition of one of its witnesses. It will be recalled that, one year earlier, the accused had said that he wanted a trial to be held, that is, on February 12, 2014.

Nothing prior to February 5, 2015 was available to him, and when he requested a postponement, for a valid reason, it was impossible to tell him when the case could proceed. It was only when the new court

schedule came out that January 14, 2016 was proposed, that is, a little less than a year later. [ 51 ] It is quite accurate to say, as the Crown contends, that it is not at all responsible for this postponement as it is due to the condition of one of the defence’s witnesses. However, is it normal to have to wait almost a full year each time before hoping to be heard? [ 52 ] The Court does not think so. There is in fact no reason for Nunavik’s citizens not to be tried within a reasonable time, as everyone else. Hence, further to his request for a postponement, Mr.

Amarualik should not have had to wait so long to be able to return before the Court for trial. The Court feels that the waiting time should not have exceeded four to six months at most. [ 53 ] What is more, this was a simple case, which did not pose any particular difficulties, and regarding which the prosecutor had only one witness, so that it should have been settled quickly.

It is not what Jordan describe as a case “of moderate complexity”. [16] [ 54 ] Although we must remain sensitive to the constraints and particulars of Québec’s Far North, the deficient resources available to the northern justice system must not disadvantage the accused, so that at least half of the delay incurred by this postponement must be qualified as institutional and the other half must be computed. [ 55 ] Again, 1211 days elapsed, that is, 40.4 months, between the indictment and the hearing of the motion. [ 56 ] After his appearance on September 23, 2013, Mr.

Amarualik took 142 days, from which 72 days due to postponement for safety reasons must be subtracted, before indicating to the Court that there would be a contradictory hearing, which is not excessive. He had to wait 119 days before being given a trial date, and 239 were added before it was held, for a total of 358 days. This period of time is already long, but keep in mind that this was the first time the hearing was set.

Despite everything, 560 days, that is, over 18 months, had elapsed since the summons was first issued. [ 57 ] The first postponement was consented to at the request of the defence, and it took 125 days before finding a new date for the trial, to be held 218 days later. [ 58 ] As stated above, this period of 343 days or 11.4 months is much too long considering the nature of this simple case. Consequently, the portion for which the defence is actually considered responsible should not exceed half, that is, 171 days.

[ 59 ] On the date scheduled, the court did not travel because of weather conditions, and no one is responsible for that delay.

The next postponement, requested again by the defence, resulted in an additional delay of 198 days, which exceeded a little, but exceeded nonetheless, the six months that the Court considers adequate to reschedule a case that is already far behind schedule. [ 60 ] The postponement that followed, due to the prosecution’s witness being absent, extended the delays by 49 days, which must obviously be computed. [ 61 ] Consequently, out of the 40.4 months elapsed since the summons was issued, 13.9 months may be attributed to the defence or to exceptional circumstances.

Thus, 26.5 months must be considered to determine whether the accused’s right to be tried within a reasonable time, as stipulated in

section 11(

b) of the Charter , was complied with or not. [ 62 ] It must be admitted that this case is in the median zone, where a decision is not arrived at automatically. [ 63 ] In fact, the time elapsed, taking into account all the circumstances, is very close to the fine line separating what is acceptable from what is not, in terms of delay, depending on the point of view one defends. Each party had arguments likely to support their respective contentions, which they in fact presented intelligently.

However, given all the particulars of this case, the Court considers that the delays exceed what is reasonable. [ 64 ] Despite the fact that the delays were in good part due to deficient resources for which the D.C.P.P. is not responsible and that the application of the transitional exceptional rule must be considered, it is nevertheless difficult to contend that this case is of “moderate complexity”. [ 65 ] In fact, the Court bears in mind, and this element is significant in the Court’s view, the fact that this case could hardly be any simpler.

We are talking about a single charge here, whereby, at a specific time, the accused drove while his ability to do so was impaired. The Crown announced only one witness, whereas the defence did not intend to call more than two witnesses, with the result that the parties indicated, when the case was set for trial, that one hour would be sufficient. [ 66 ] Accordingly, the Court considers that a stay of proceedings should be ordered.

FOR THESE REASONS, THE COURT: [ 67 ] GRANTS the motion; [ 68 ] DECLARES that the right of the accused to be tried within a reasonable time was violated; [ 69 ] ORDERS a stay of proceedings. __________________________________ JEAN-PIERRE GERVAIS J.C.Q. Thierry Potvin Counsel for the prosecutor Sarah Plamondon Counsel for the defence Dates of hearing: November 17, 2016 January 12, 2017