2016 QCCQ 15023, 2016 QCCQ 15023

Unofficial English Translation Catania c. R. 2016 QCCQ 15023 JP 2213 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL “Criminal and penal division” No.: 500-01-072674-127 DATE: December 14, 2016 PRESIDING: THE HONOURABLE YVAN POULIN, J.C.Q. Paolo CATANIA André FORTIN Pasquale FEDELE Martin D’AOUST Pascal PATRICE Frank ZAMPINO LES CONSTRUCTIONS FRANK CATANIA & ASSOCIÉS INC. Accused (Applicants) v.

HER MAJESTY THE QUEEN Prosecutrix (Respondent) DECISION ON JORDAN APPLICATIONS TO STAY PROCEEDINGS (APPLICATIONS Nos. 18 AND 19) [ 1 ] The applicants are being tried on charges of fraud, breach of trust, fraud on the government, and conspiracy. These charges were laid following a major investigation into municipal embezzlement concerning actions taken in the context of the development of a Montreal real estate project known as the Faubourg Contrecœur. [ 2 ] The applicants were initially charged in May of 2012.

The Crown later chose to proceed by way of direct indictment, and the applicants exercised their right to be tried by a judge without a jury. Further to this election, case management sessions were held by judges of the Court of Quebec to circumscribe the nature, scope, and duration of the trial. After these sessions, the parties agreed on a duration of three months. [ 3 ] The trial was scheduled for February 8 until April 29, 2016, but could not be completed within this time frame. From the beginning of the trial, the Court devoted most of its time to the preliminary applications submitted by the applicants.

On this point, it should be noted that some of these applications were filed on the eve of trial or after it had started. The health problems of one of the co- accused also slowed the progression and orderly conduct of this case.

[ 4 ] At the current stage of the proceedings, the presentation of the Crown’s evidence has not yet started. Despite the fact that the Court was prepared to continue the trial in the short or medium term, the unavailability of one or another of the applicants’ counsel – and one of the applicants personally – delayed its continuation by several additional months. [ 5 ] The trial will now have to be continued as of January of 2017 and is expected to end in June of 2017.

Because sixty-one months will have elapsed between the initial charges and the anticipated end of trial, the applicants now seek a stay of proceedings due to unreasonable delays. On the basis of the Supreme Court’s recent decision in R. v. Jordan , [1] they allege that their constitutional rights guaranteed by paragraph 11(

b) of the Charter have been violated. Essentially, the applicants submit: ➢ that the eighteen-month ceiling is applicable in the present case; ➢ that the total delay of sixty-one months less the delays attributable to the defence substantially exceed this ceiling; and ➢ that the Crown has not succeeded in rebutting the presumption that the delay is unreasonable. [ 6 ] For its part, the Crown submits that it is actually the thirty-month ceiling that applies in this case.

The Crown also submits: ➢ that certain fairly substantial delays are attributable to the defence; ➢ that the remaining delay is justified by the particularly complex nature of this case; ➢ that certain portions of the remaining delay are attributable to the illness of one of the co-accused; and ➢ that the transitional exceptional circumstance applies because this case arose several years before the new analytical framework was established in Jordan . [ 7 ] Before addressing all of these issues in greater detail, a few general comments on the impact and scope of Jordan are required.

I – JORDAN : THE NEW ANALYTICAL FRAMEWORK [ 8 ] The right to be tried within a reasonable time is guaranteed by paragraph 11(

b) of the Charter . Over the last three decades, Canadian courts have developed a considerable body of case law establishing an analytical framework to address alleged violations of this constitutional right. [ 9 ] In Jordan , the majority of the Supreme Court modified this analytical framework because of doctrinal and practical difficulties concerning its application. The majority established a new framework aimed at facilitating the handling of applications based on paragraph 11(

b) and encouraging all participants in the criminal justice system to cooperate in achieving reasonably prompt justice. It goes without saying that the Court must apply this new analytical framework in this case. [ 10 ] At the heart of the new framework is a ceiling beyond which delay from the time of the charge to the actual or anticipated end of trial is presumed to be unreasonable, unless justified by exceptional circumstances.

The presumptive ceiling is eighteen months for cases tried in the provincial court, and thirty months for cases in the superior court (or cases tried in the provincial court after a preliminary inquiry). [2] [ 11 ] Delays attributable to or waived by the defence do not count towards the presumptive ceiling. [3] In addition, once the presumptive ceiling is exceeded, the burden is on the Crown to rebut the presumption of unreasonableness on the basis of exceptional circumstances. [4] If the Crown cannot do so, a stay will follow. [ 12 ] It is impossible to identify all circumstances that may qualify as “exceptional” for the purposes of adjudicating an application based on paragraph 11(

b) of the Charter .

The list of exceptional circumstances is not closed; however, in general, they fall under two categories: discrete events and particularly complex cases. [5] [ 13 ] If the exceptional circumstance relates to a discrete event (such as, for example, an illness or unexpected event at trial), the delay reasonably attributable to that event is subtracted from the total delay . [6] If the exceptional circumstance arises from the case’s complexity, the delay is reasonable and no further analysis is required . [7] According to the Court, an exceptional circumstance is the only basis upon which the Crown can discharge its burden to justify a delay that exceeds the ceiling. [8] [ 14 ] As for cases that are already in progress, the Supreme Court emphasized the fact that the new analytical framework must be applied flexibly and contextually .

At paragraph 94, the Court provided the following justification for a transitional exceptional circumstance: [94] Here, there are a variety of reasons to apply the framework contextually and flexibly for cases currently in the system, one being that it is not fair to strictly judge participants in the criminal justice system against standards of which they had no notice. Further, this new framework creates incentives for both the Crown and the defence to expedite criminal cases. However, in jurisdictions where prolonged delays are the norm, it will take time for these incentives to shift the culture.

As well, the administration of justice cannot tolerate a recurrence of what transpired after the release of Askov , and this contextual application of the framework is intended to ensure that the post- Askov situation is not repeated . [Emphasis added.] [ 15 ] At paragraph 96, the Court described the circumstances in which the transitional exceptional circumstance may apply: [96] First, for cases in which the delay exceeds the ceiling, a transitional exceptional circumstance may arise where the charges were brought prior to the release of this decision.

This transitional exceptional circumstance will apply when the Crown satisfies the court that the time the case has taken is justified based on the parties’ reasonable reliance on the law as it previously existed. This requires a contextual assessment, sensitive to the manner in which the previous framework was applied, and the fact that the parties’ behaviour

cannot be judged strictly, against a standard of which they had no notice. For example, prejudice and the seriousness of the offence often played a decisive role in whether delay was unreasonable under the previous framework. For cases currently in the system, these considerations can therefore inform whether the parties’ reliance on the previous state of the law was reasonable .

Of course, if the parties have had time following the release of this decision to correct their behaviour, and the system has had some time to adapt, the trial judge should take this into account. [Emphasis added.] [ 16 ] The issue of the application of this circumstance in judicial districts with significant institutional delay problems, such as Montreal, is addressed at paragraph 97: [97] Moreover, the delay may exceed the ceiling because the case is of moderate complexity in a jurisdiction with significant institutional delay problems.

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

This transitional exceptional circumstance recognizes that change takes time, and institutional delay — even if it is significant — will not automatically result in a stay of proceedings. [Emphasis added.] [ 17 ] Finally, at paragraph 98, the Court stated that it was relying “on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case”. On this point, the Court stated, more specifically, that: [98] On the other hand, the s. 11 (

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

Section 11 (

b) breaches will still be found and stays of proceedings will still be entered for cases currently in the system. For example, if the delay in a simple case vastly exceeds the ceiling because of repeated mistakes or missteps by the Crown, the delay might be unreasonable even though the parties were operating under the previous framework. The analysis must always be contextual.

We rely on the good sense of trial judges to determine the reasonableness of the delay in the circumstances of each case. [ 18 ] These principles being established, it is now necessary to delve further into the chronology of the proceedings and the degree of complexity of this case. II – THE PROCEEDINGS, THE DELAYS, AND THE COMPLEXITY OF THE CASE

A) The charges [ 19 ] The applicants were arrested in May of 2012 and appeared on July 13, 2012, on various charges of embezzlement. The Crown began to disclose its evidence as of the initial appearance, and additional evidence was provided subsequently. At the time of the appearance, the applicants’ counsel disagreed on whether a preliminary inquiry should be set immediately.

The case was postponed until September 14, 2012, so that the defence could review the evidence. [ 20 ] The case was then postponed until October 29, 2012, December 3, 2012, and January 16, 2013, to hold case management conferences during which the parties discussed setting a date for a preliminary inquiry that was to last several weeks. During these sessions, the parties addressed the issue of possible admissions, and the Crown complied with the Court’s requests concerning the delivery of certain documents.

B) The direct indictment [ 21 ] On January 16, 2013, the Crown informed the coordinating judge that it would file a direct indictment, which would avoid the need to hold a preliminary inquiry. At the defence’s request, the applicants’ appearance before the Superior Court was set for March 4, 2013, rather than the first available date, January 23, 2013. It was subsequently postponed once again to March 20, 2013, because of the applicants’ absence from Court.

C) Appearance before the Superior Court [ 22 ] The applicants finally appeared on the direct indictment on March 20, 2013. Although André Vincent, J. of the Superior Court stated that he was ready to

schedule the trial immediately, the applicants instead suggested postponing the case to the next session of criminal assizes, on April 29, 2013, so that they could finish their discussions with the Crown regarding the choice of forum. The judge agreed with this request.

D) Re-election [ 23 ] On April 29, 2013, the applicants availed themselves of subsection 565(2) of the Criminal Code and elected to be tried by a judge without a jury. The Superior Court took note of this decision, and the case was rescheduled for May 22, 2013, before the Court of Quebec for the subsequent procedural steps. [ 24 ] On that date, the parties postponed the case until September 3, 2013, to hold a case management conference for the purpose of defining the issues in the case and determining the duration of the trial.

E) Case management conferences [ 25 ] Between September 3, 2013, and October 8, 2014, the Court held seven case management conferences. For the purposes of the Jordan application, the Court took cognizance of all the discussions held during these case management sessions. The following summarizes the nature of these discussions in broad strokes: (

a) On September 3, 2013, the Crown informed Nathalie Fafard, J.C.Q. that a proposed list of admissions had been in the defence’s possession for over two months. The applicants’ counsel sought an additional three months to complete their analysis of this proposal.

Requests for additional disclosure requiring the prosecution’s response were made. Counsel for the co-accused Frank Zampino and Bernard Trépanier informed the Court of their intention to present an application to stay proceedings on the ground that their right to silence was violated as a result of their summons before the commission of inquiry on the construction industry (the Commission). It was noted that the eventual trial would last three months and that the preliminary application in question could be heard in one week. All parties agreed to continue the case management conference in the month of December 2013; (

b) On December 12, 2013, Fafard, J.C.Q., was informed that the applicants’ counsel had met with the Crown a few days earlier and that they had not reached an agreement on the proposed admissions. The application to stay proceedings announced more than three months earlier had not yet been filed by the co-accused Zampino and Trépanier. The Crown stated that there was no point in continuing to discuss the proposed admissions and insisted on setting a trial date, pointing out that the arrests dated back to 2012.

Counsel for one of the applicants stated that he was optimistic that admissions would be made once a judge was available to hear the as-yet-unfiled application to stay proceedings. Fafard, J.C.Q., informed the parties that the Court would not

schedule three months of trial in these rather nebulous circumstances, and the case was continued to February of 2014 for a case management conference; (

c) On February 7, 2014, the Crown again insisted on proceeding and setting a trial date. Yves Paradis, J.C.Q., informed the parties that the trial would not be scheduled until he was convinced that it was [ translation ] “on track” and that it would reach its final destination [ translation ] “in one shot”. The judge insisted that the preliminary applications be filed in advance and that a

schedule be established. Counsel for Frank Zampino and Bernard Trépanier again stated their intention to submit the application to stay proceedings that had not yet been filed. Counsel for Frank Zampino expressed his intention to present an application for access to an anonymous letter, but this application was not ready yet. She also reserved the right to contest certain search warrants but did not provide further details. For his part, counsel for Daniel Gauthier indicated that he had concerns about a few of the warrants, but he was not yet sure if he would present an application in this regard. The case management conference was continued to March of 2014; (

d) On March 25, 2014, counsel for Frank Zampino and Bernard Trépanier had still not yet filed the application to stay proceedings previously announced. Counsel for Frank Zampino, however, filed an application for disclosure concerning the anonymous letter and evidence relating to the Commission. The Crown said that it would be able to take a position on these applications within two weeks. The Court then tried to bring the parties closer together with regard to the proposed admissions, which had been on hold for several months.

Counsel for Frank Zampino stated that she was not willing to make any admissions before the Court ruled on the application to stay proceedings, which she had not yet filed. Manon Ouimet, J.C.Q. insisted that the application be filed before scheduling the hearing. She directed counsel for Frank Zampino and Bernard Trépanier to file it before the next case management conference, scheduled for May of 2014; (

e) On May 23, 2014, the application had still not been filed. Counsel for Frank Zampino and Bernard Trépanier stated that the case was complex and that they needed more time to take a position. The Crown insisted on setting a trial date because of the time that had elapsed since the arrests and noted that the defence was taking a long time to decide on a course of action. Despite the prosecution’s firm objection, Ouimet, J.C.Q. agreed to postpone the case management conference until August of 2014. The judge indicated, however, that this was attributable to the defence and insisted that all applications be filed before this date; (

f) On August 6, 2014, counsel for Frank Zampino and Bernard Trépanier had still not filed their applications. Against all expectations, counsel for Frank Zampino informed Ouimet, J.C.Q. that she would not present an application to stay proceedings for the time being. She reserved the right to present an application to exclude evidence at a later date and stated that she was now prepared to discuss possible admissions with the prosecution. Counsel for Bernard Trépanier, for his part, announced that he intended to submit applications, which he had not yet filed.

The prosecution again insisted on scheduling the trial. In the circumstances, the judge finally agreed to do so, but some of the applicants’ counsel were absent. It was agreed that the trial date would be set in October of 2014. [ 26 ] On October 8, 2014, the parties agreed that the trial would last a total of three months, including the time needed to decide the preliminary applications. The trial was set for the first available date, that is, from February 8 until April 29, 2016.

F) The preliminary applications filed on the eve of trial [ 27 ] In September of 2015, the coordinating judge appointed the undersigned as trial judge. At that time, only two preliminary applications had been filed by the applicants. [ 28 ] On November 11, 2015, the Court summoned the parties and held a pre-trial conference to establish a

schedule for the hearing of these two applications. Counsel for Bernard Trépanier then announced that he would file an application for recusal against the undersigned. The applicants announced their intention to file several additional applications in regard to the disclosure of evidence. The Crown, for its part, announced its intention to seek an amendment to some of the charges, to which the applicants objected. [ 29 ] In the circumstances, the Court established a

schedule for the filing and presentation of all the new applications.

They were filed between November of 2015 and January of 2016, and consisted specifically of: ➢ Application No. 5 concerning the disclosure of various pieces of evidence; ➢ Application No. 6 concerning the disclosure of information in connection with the commission of inquiry on the construction industry; ➢ Application No. 7 concerning the disclosure of information in the possession of the Ordre des ingénieurs; ➢ Application No. 8 concerning the disclosure of information in the possession of the Office of the Controller General of the Ville de Montréal; ➢ Application No. 9 concerning the disclosure of information in the possession of the commission of inquiry on the construction industry;

➢ Application No. 10 concerning the disclosure of information in the possession of the Competition Bureau; ➢ Application No. 11 concerning the disclosure of information deemed [ translation ] “not relevant” by the prosecution; and ➢ Application No. 12 concerning the disclosure of the [ translation ] “source reports” and notes of the handlers. [ 30 ] The application for recusal presented by counsel for Bernard Trépanier was heard on December 2, 2015.

On January 25, 2016, the undersigned refused to recuse himself and filed a written judgment to that effect. [9] On January 26, 2016, counsel for Bernard Trépanier contested this refusal and filed an application for a writ of prohibition before the Superior Court. This application, which had the effect of staying the first-instance proceedings, prevented the Court from hearing one of the preliminary applications, which was scheduled for that same day. The writ of prohibition was heard on an urgent basis by the Superior Court on February 4, 2016.

In a judgment rendered from the bench, the Court dismissed the application for a writ of prohibition. [10]

G) The trial [ 31 ] On February 8, 2016, the Court began hearing the proceedings. Between February 8 and April 27, 2016, the Court’s time was devoted exclusively to the hearing and tight management of the preliminary applications referred to above, as well as three lengthy applications to stay proceedings filed on February 19, 2016, after the opening of the trial. [ 32 ] The application concerning the anonymous letter from an informant was heard over a period of several days. It required holding an ex parte in camera hearing in accordance with the principles set out in Basi .

On March 21, 2016, the Court filed a written judgment finding that informant privilege applied and refusing the requested disclosure. [11] [ 33 ] The Crown raised a preliminary objection to the application to obtain information related to the commission of inquiry on the construction industry.

On March 21, 2016, the Court filed a judgment allowing the preliminary objection and dismissing the application summarily. [12] Essentially, the Court found that it was a fishing expedition that did not require a hearing on the merits. [ 34 ] Over the course of the proceedings, seven applications for disclosure were withdrawn at one point or another, further to agreements between the parties and, in some cases, certain third parties. [13] [ 35 ] As for the applications to stay proceedings filed after the opening of the trial, they were heard over a total period of twelve days.

Fairly significant testimonial and documentary evidence was presented by both sides. Essentially, the applicants alleged shortcomings and deficiencies in the disclosure of evidence and the Crown’s misconduct in regard to the scope of certain charges. After a review and analysis of all the complaints, the Court filed a written decision finding that a stay of proceedings was not warranted. [14]

H) Bernard Trépanier’s health [ 36 ] It should be noted that as of March 7, 2016, the accused Bernard Trépanier began to have health problems, which had the effect of slowing the progression and orderly conduct of the trial. While it was possible to proceed with the hearing of certain applications, others had to be suspended because of his absence for medical reasons.

The details of his condition were obtained piecemeal until the Court ordered the presence of the oncologist responsible for his case. [ 37 ] On April 6, 2016, the oncologist testified and described Trépanier’s medical situation as well as the nature and effects of the chemotherapy treatments he was receiving. On April 7, 2016, the Court concluded that Trépanier’s state of health would likely continue to disrupt the orderly conduct of the proceedings in the short and medium term.

In a decision rendered orally, the Court ordered that he be tried separately and promptly proceeded with the trial of the other co-accused.

I) Scheduling conflicts and the continuation in January of 2017 [ 38 ] In light of all the foregoing, it was obviously not possible to finish the trial in the time period initially considered sufficient by the parties. In view of the number, nature, and content of these applications, which were filed on the eve of trial and after its opening, as well as Trépanier’s health problems, this should not surprise anyone. [ 39 ] It should be noted that as early as March of 2016, the Court proposed an additional twenty-five days of hearing between May 2 and June 17, 2016.

Because the trial was already scheduled until April 28, 2016, this solution would have allowed it to continue uninterrupted. The Crown was available, but conflicts between the schedules of the applicants’ counsel – and the applicant Pasquale Fedele – reduced the remaining available dates to practically nil. [ 40 ] The Court then proposed thirty-eight hearing dates between September 6 and December 20, 2016.

The Crown was available, but scheduling conflicts led to a similar result, in particular because two counsel already had a jury trial scheduled before the Superior Court starting on October 8, 2016. [ 41 ] Given this impasse, and in the absence of any alternative solution that could have actually and effectively accelerated the continuation of the trial, the dates chosen were January 16 to June 23, 2017. Some might note that the remaining duration of the trial (five months) is longer than what the parties had initially anticipated as the total duration (three months).

This duration was ordered by the Court in light of the progression of the case, its complexity, and the time that had proved to be necessary until that point to decide the numerous preliminary applications. III – THE APPLICABLE CEILING: EIGHTEEN OR THIRTY MONTHS? [ 42 ] Before applying the new analytical framework established in Jordan to this factual framework, the Court must first determine the applicable ceiling. [ 43 ] The divergent

interpretations separating the applicants and the Crown on this issue arises from the wording of paragraphs 46

and 49 of the opinion of the majority of the Supreme Court on the circumstances that determine whether one ceiling or another applies. In paragraph 46, the Court stated: [46] At the heart of the new framework is a ceiling beyond which delay is presumptively unreasonable.

The presumptive ceiling is set at 18 months for cases going to trial in the provincial court , and at 30 months for cases going to trial in the superior court (or cases going to trial in the provincial court after a preliminary inquiry) . [Emphasis added.] [ 44 ] In paragraph 49, the Court specified: [49] The most important feature of the new framework is that it sets a ceiling beyond which delay is presumptively unreasonable. 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 … [Footnotes omitted; emphasis added.] [ 45 ] In the third footnote of paragraph 49, the Court noted: While most proceedings with a preliminary inquiry are eventually tried in the superior court, this is not always the case.

For example, a case may go to trial in the provincial court after a preliminary inquiry if the province in which the trial takes place offers this as an option (such as Quebec), or if the accused re-elects a trial in the provincial court following a preliminary inquiry. In either case, the 30-month ceiling would apply . [ 46 ] On the basis of these remarks, the applicants argue that the presumptive ceiling of eighteen months applies in this case because there was no preliminary inquiry and the trial is before the Court of Quebec rather than the Superior Court.

In the applicants’ view, the application of one ceiling over another depends directly on whether or not there was a preliminary inquiry as well as on the specific forum where the trial will be held. Because no preliminary inquiry was held, and since the Court of Quebec is not the Superior Court, the applicants argue that the presumptive ceiling of eighteen months clearly applies. [ 47 ] For its part, the Crown submits that the presumptive ceiling of thirty months should apply because the trial is being held before a “judge” without a jury within the meaning of

section 552 of the Criminal Code and not a “provincial court judge” within the meaning of Jordan (and

section 2 of the Criminal Code ). In the Crown’s view, the majority of the Supreme Court clearly intended the thirty-month ceiling to apply to all cases before a judge sitting alone within the meaning of

section 552 , regardless of whether a preliminary inquiry is held. According to the Crown, if the

interpretation advocated by the applicants is accepted, it would lead to interprovincial disparities with respect to the scope of protection provided by paragraph 11(

b) of the Charter , which should clearly be avoided . In the Crown’s view, a judge of the Court of Quebec sitting as a judge without a jury therefore constitutes a superior court judge within the meaning of Jordan . [ 48 ] For the reasons that follow, the Court shares the Crown’s opinion and finds that the presumptive ceiling of thirty months applies in this case. Although this specific issue was not considered by the Supreme Court, it appears from the majority’s overall reasons that the thirty-month ceiling applies to the situation before us.

This is the only conclusion that is consistent with the spirit, purpose, and scope of the new analytical framework for delays established by the Supreme Court. Moreover, it is the only

interpretation that avoids interprovincial disparities in the application of constitutional guarantees. [ 49 ] At the outset, the Court notes that judges of the Court of Quebec have broad jurisdiction. Under

section 552 of the Criminal Code , the Court of Quebec exercises jurisdiction that is assigned exclusively to the superior courts in the other Canadian provinces and territories. According to the nature of a given case, a judge of the Court of Quebec may hear it as a “judge” without a jury within the meaning of

section 552, a judge of the provincial court, or a judge of a

summary conviction court. Their powers obviously vary according to the specific jurisdiction being exercised in a particular case. [ 50 ] In the case before us, it is clear that the Court is hearing the applicants’ case as a “judge” without a jury within the meaning of

section 552, rather than as a judge of the provincial court. [ 51 ] The applicants, who are subject to a direct indictment, have availed themselves of subsection 565(2) of the Criminal Code , which provides that accused subject to this type of indictment are “deemed […] to have elected to be tried by a court composed of a judge and jury” but may “re-elect to be tried by a judge without a jury”. [ 52 ] In this specific, distinctive context, it goes without saying that this case is not “going to trial in the provincial court” within the meaning of paragraphs 46 and 49 of Jordan . [ 53 ] Moreover, it appears from the provisions of the Criminal Code referred to above that, in this case, the Court of Quebec is exercising jurisdiction that would belong to the Superior Court in any other Canadian province or territory.

The Court shares the Crown’s opinion that it would be absurd that the characterization of the delays be governed by two different ceilings depending on the province or territory where the charges are laid. [ 54 ] Moreover, it is important to note that in Corriveau v. R. , [15] the Superior Court found that the thirty-month ceiling applied to situations in which no preliminary inquiry was held as a result of the filing of a direct indictment.

Although that case proceeded before the Superior Court, it nevertheless clearly established that the thirty-month ceiling is not exclusively dependant on whether a preliminary inquiry is held. The Court shares this opinion. [ 55 ] In light of all the foregoing, the Court finds that a judge of the Court of Quebec sitting as a judge without a jury under

section 552 constitutes a “superior court” within the meaning of paragraphs 46 and 49 of Jordan. In the Court’s opinion, this is the only logical and rational conclusion that is consistent with the new analytical framework established by the Supreme Court. [ 56 ] Let us now apply this new analytical framework to the applicants’ case.

IV – APPLICATION OF THE NEW ANALYTICAL FRAMEWORK

A) Total delay [ 57 ] As previously stated, the total delay between the charges and the anticipated end of trial in this case is sixty-one months .

B) Delays attributable to the defence [ 58 ] In Jordan , the majority specified that delays attributable to the defence must be subtracted from the total delay for the purposes of determining whether the applicable ceiling has been breached.

Delays attributable to the defence are those which the defence has clearly and unequivocally waived [16] and those caused solely by the conduct of the defence. [17] [ 59 ] Within the meaning of Jordan , the latter category comprises delay caused by deliberate tactics intended to cause a delay, [18] frivolous applications, delays setting dates because the defence is not ready to proceed although the Crown and the court are, [19] and delays caused by other defence actions or conduct. [20] It is important to note that “defence actions legitimately taken to respond to the charges” [21] are not part of the delay attributable to the defence. [ 60 ] Here, after having analyzed the chronology of the case, the Court concludes that the following periods are attributable to the defence within the meaning of Jordan : (

a) From January 23 until March 20, 2013: delay of fifty-six days caused by the defence’s insistence that the appearance before the Superior Court be held at a later date rather than the first one available; (

b) From December 12, 2013, until February 7, 2014: delay of fifty-seven days caused by the defence’s failure to promptly file previously announced applications; (

c) From February 7 until March 25, 2014: delay of forty-six days caused by the defence’s failure to promptly take a position on certain issues and file previously announced applications; (

d) From March 25 until May 23, 2014: delay of fifty-nine days caused by the defence’s failure to promptly file previously announced applications; (

e) From May 23 until August 6, 2014: delay of seventy-five days caused by the defence’s failure to promptly file previously announced applications; (

f) From August 6 until October 8, 2014: delay of sixty-three days caused by the absence of certain counsel for the defence and the failure to promptly file previously announced applications; (

g) From April 28, 2016, until January 16, 2017: delay of two hundred and sixty-three days caused by the unavailability of the defence although the Court and the Crown were ready to proceed. [ 61 ] The Court therefore finds that the delay attributable to the defence is just over twenty months.

C) Breach of the thirty-month ceiling [ 62 ] Because the total delay of sixty-one months less the delay of twenty months attributable to the defence results in a remaining delay of forty-one months , the burden is on the Crown to rebut the presumption that the delay is unreasonable.

D) Exceptional circumstances: discrete events and particularly complex cases [ 63 ] The Court shares the Crown’s opinion that Trépanier’s unexpected health problems constitute a discrete event within the meaning of Jordan . This unforeseeable event constitutes one of several reasons why the Court was prevented from completing the trial before April 28, 2016.

Although it is difficult to precisely determine how far along the trial would be if these problems had not occurred, it is probable, however, that the duration initially contemplated by the parties would have been insufficient in any event. [ 64 ] Moreover, in the Court’s view, there is no doubt that this is a complex case. It has numerous characteristics of a complex case within the meaning of Jordan . The charges concern embezzlement that took place in the context of the implementation of a real estate development project over a long period of time.

The evidence disclosed is considerable, indeed colossal, consisting of several hundred thousand pages. [ 65 ] Adding to the sheer volume is information from parallel inquiries into municipal corruption that raise rather complex issues concerning disclosure. Similarly, various issues arise concerning the protection of the identity of informants, one of whom led to a Basi hearing .

The applications involving numerous third parties, including the commission of inquiry on the construction industry, increase the number of parties involved and heighten the complexity of the case, as does the large number of witnesses forming part of the Crown’s evidence, including three expert witnesses in various fields. [ 66 ] It is worth noting that, in hearings or applications prior to Jordan , the applicants themselves characterized this case as large- scale and complex, as a “large and complex file”, and a “large and highly complex trial”. [ 67 ] It is true that certain difficulties finding continuance dates were the result of the involvement of several counsel and their respective schedules.

In Vassell , [22] rendered a few days before Jordan , the Supreme Court stated the following in this regard: [6] In many cases, delay caused by proceeding against multiple co-accused must be accepted as a fact of life and must be considered in deciding what constitutes a reasonable time for trial .

[ 68 ] In the Court’s view, the decision to prosecute the accused jointly was perfectly justified in this case. This case is clearly distinguishable from Auclair , [23] in which it was found unrealistic to hear a joint trial of over 150 individuals in connection with a multitude of criminal acts occurring over numerous years within a reasonable time period. [ 69 ] Whenever possible, it is generally in the interests of justice to jointly prosecute persons involved in a common criminal adventure. In the case before us, none of the applicants filed applications for separate trials.

Moreover, there is no indication that the prosecution’s plan for bringing the case to completion is unrealistic. [ 70 ] Despite the few breaches identified by the Court in its June 17, 2016, decision, [24] it cannot be concluded that there is no plan or that the plan in place is unrealistic. Nor is this a case in which repeated errors or blunders of the prosecution would have caused undue delays. The evidence reveals that the prosecution took steps to move the case forward quickly and insisted several times that a trial date be set.

Moreover, the prosecution waited a long time for certain applications that the defence announced and promised to submit. [ 71 ] Ultimately, like the British Columbia Court of Appeal in R . v. Singh , [25] the Court has no hesitation in finding that this is a particularly complex case within the meaning of Jordan . In this context, and in view of all the circumstances, its length is justified, and a stay of proceedings is not warranted.

E) The transitional exceptional circumstance [ 72 ] To conclude, the Tribunal notes that it would have applied the transitional exceptional circumstance if necessary. It has been established that the parties reasonably relied on the law as it previously existed. It is also well known that the District of Montreal was – and still is – affected by significant institutional delays. [ 73 ] The Supreme Court has stated loud and clear that the administration of justice cannot countenance a recurrence of Askov in 1990 .

In the context of this case, taking into account everything discussed above and all the evidence presented at the hearing, including the proof of prejudice, it is clear that a stay of proceedings would be contrary to the Supreme Court’s intention. FOR ALL THESE REASONS, THE COURT: ➢ DISMISSES the Jordan applications to stay proceedings. __________________________________ YVAN POULIN, J.C.Q.

Mtre Louis Gélinas Mtre Pascale Girard Mtre Maxime Hébrard Mtre Isabelle Lamarche Mtre Pierre L’Écuyer Mtre Pierre Morneau Mtre Jean-Marc Tremblay Mtre Isabel Schurman For the applicants (accused) Mtre Pascal Lescarbeau Mtre Nicole Martineau For the respondent (prosecutrix) Hearing dates: November 8 and 10, 2016