2023 QCCQ 5257, 2023 QCCQ 5257

Kauki c. R. 2023 QCCQ 5257 COURT OF QUÉBEC CANADA PROVINCE OF QUÉBEC DISTRICT OF ABITIBI TOWN OF KUUJJUAQ Criminal Division N° : 635-01-019766-204 DATE: June 19, 2023 [1] ______________________________________________________________________ BY THE HONOURABLE NATHALIE SAMSON, J.C.Q. ______________________________________________________________________ ALOUPA KAUKI APPLICANT-Accused v.

HIS MAJESTY THE KING RESPONDENT-Prosecutor ______________________________________________________________________ JUDGMENT ON APPLICATION TO STAY PROCEEDINGS FOR UNREASONABLE DELAY ______________________________________________________________________ OVERVIEW [ 1 ] The Court must rule on an application to stay proceedings filed by the applicant-accused (the accused), who alleges unreasonable delays. He alleges that all the delays are attributable to the State. [ 2 ] On November 5, 2020, one count of sexual assault and two counts of breach of conditions were laid against the accused.

The event is alleged to have occurred in the Nunavik community of Tasiujaq, but the trial is to be held in Kuujjuaq, as the Circuit Court does not travel to Tasiujaq. The accused, however, resides in Kuujjuaq. [ 3 ] The respondent-prosecutor (the prosecution) alleges that part of the delay is attributable to the defence and another part to either the acts of the defence or, alternatively, to a discrete event, the COVID-19 pandemic.

FACTS ADMITTED BY THE PARTIES [ 4 ] The ceiling applicable in this case is 18 months. [ 5 ] The time between the filing of the charge and the start of the hearing on the application for unreasonable delay is 959 days, or approximately 31 months. [ 6 ] The accused was ready to set his trial on March 25, 2021, but the case was postponed from one date to another as there were no available dates in the Kuujjuaq judicial calendar.

On July 20, 2021, the case was set for a two-and-a-half-day trial on January 27-28, 2022, and March 18, 2021. [ 7 ] The period between March 25, 2021, and January 27, 2022, is institutional; [ 8 ] The accused was detained for a total of 25 days. [ 9 ] This is not a particularly complex issue. THE FRAMEWORK [2] [ 10 ] First, the Court must determine the total delay, and then deduct delays attributable to the defence from that period. [ 11 ] Net delay is used to calculate reasonable delay. If net delay exceeds the ceiling set by the Supreme Court, it is presumed unreasonable.

If it is less than the ceiling, the defence must demonstrate that it is unreasonable. [ 12 ] If the delay exceeds the ceiling, it falls to the prosecution to establish that the delay is reasonable. To succeed, the prosecution must establish exceptional circumstances, either by proving discrete events or by demonstrating that the case is complex. [ 13 ] Transitional exceptional circumstances do not apply in this case, since the charges were filed several years after Jordan [3] .

ISSUES IN DISPUTE 1. What delays are attributable to the defence? 2. Did the prosecution prove a discrete event? [ 14 ] The Court concludes that the delays are unreasonable since they exceed the 18-month ceiling, and here is why: ANALYSIS 1.

What delays are attributable to the defence? [ 15 ] Delays attributable to the defence are divided into two categories: 1) those which the defence explicitly or implicitly waives in a clear, informed, express and unequivocal manner [4] ; 2) those that are solely or directly caused by the conduct of the defence or an action illegitimately taken by it [5] . [ 16 ] An analysis of the periods on which the parties disagree follows.

Period from January 27, 2022, to January 12, 2023 (351 days) [ 17 ] On January 27, 2022, the accused was ready to proceed. [ 18 ] The Itinerant Court did not travel to Kuujjuaq that court week. Indeed, measures related to the COVID-19 pandemic prevented the lawyers and the judge from traveling during this court term, and the Court proceeded by videoconference. However, the accused, plaintiffs and civil witnesses were available at the Kuujjuaq courthouse with a clerk and special constables.

The prosecution asked to proceed by videoconference, but the defence refused. [ 19 ] The trial was therefore cancelled and postponed several times, as there were no dates available on the judicial calendar. [ 20 ] On February 9, 2022, the parties sent an e-mail to the region's coordinating judge to check on the possibility of having out-of- term dates to proceed in this case.

The coordinating judge informed the parties that no judge was available to hear out-of-court trials in the Itinerant Court. [ 21 ] Finally, after discussion, the parties decided to set the trial for a day and a half, since it was impossible to find available dates for two and a half days.

The trial was therefore set for January 12 and 13, 2023, and March 18, 2023, given that other files had already been set to proceed on those dates. [ 22 ] On December 16, 2022, at a management meeting for all files scheduled to proceed during the week of January 9, 2023, and due to the overcrowding of the docket on January 12 and 13, 2023, it was decided that only the application for unreasonable delay would be heard. [ 23 ] On January 12, 2023, the hearing of the motion for unreasonable delay was postponed due to a backlog on the docket.

The parties agreed to file their arguments in writing and send them to the regional coordinating judge, who would appoint a case management judge to hear the motion. [ 24 ] On March 24, 2023, the coordinating judge informed the parties that the file will follow its regular course and that the judges presiding over these terms will make the necessary decisions. [ 25 ] Finally, the judge presiding over the court week of April 11, 2023, was appointed as case management judge for the hearing of the motion [6] . On April 11, 2023, the file was ready to proceed and pleadings were filed.

In view of the overcrowded docket, the case was taken under advisement and set for decision on June 19, 2023. The trial was set for June 22, 2023. [ 26 ] The defence argues that all the delays are attributable to the State. [ 27 ] The prosecution, for its part, argues that the defence is responsible for the delays between January 27, 2022, and January 13, 2023, since he should have agreed to proceed by videoconference [7] , as offered to him by the prosecution and the Court. [ 28 ] The defence is in the opinion that this matter is a sexual assault case where credibility is at stake.

There is also a Charter motion in the file, and the police officer's credibility is also at issue for the voir dire . [ 29 ] The defence attorney pleaded that she could not have represented her client properly and that it was a trial scheduled for two days. In addition, she alleged that the prosecution had not filed a motion to proceed by videoconference under

section 714.1 of the Criminal Code [8] . [ 30 ] R. v . S.D.L . [9] reminds us that when credibility is an issue, testimony by way of videoconference should be authorized only in the face of exceptional circumstances that personally impact the proposed witness. The proof of exceptional circumstances is typically provided by affidavit. Moreover, if the quality control is unsatisfactory, the decision authorizing the video testimony should be revised. [ 31 ] In addition, in R. v . Adam [10] , the Court explained that when credibility is a contentious issue, remote testimony is the exception. It added that the more complex the evidence, the more cautious the Court must be.

[ 32 ] Even during the pandemic, video appearance remained the exception [11] . [ 33 ] The Court is convinced that the accused was entitled to a fair and equitable trial and that allowing the accused and the complainant to testify remotely in this case could compromise this right. [ 34 ] The accused is facing serious charges, and credibility is at the heart of the trial.

The outcome of this trial is directly linked to the judge's analysis of the credibility of the witnesses. [ 35 ] This is not a measure taken illegitimately by the defence, but one taken with due regard for his right to a fair trial. [ 36 ] For these reasons, the Court does not impute this delay to the defence.

Period from April 11 to June 22, 2023 (72 days) [ 37 ] The prosecution argues that these delays must be attributable to the defence, since they followed the presentation of its application for delay. [ 38 ] The defence pleads that the delay is attributable to the State. [ 39 ] The accused’s application for unreasonable delay is not far-fetched and presents reasonable grounds in law. He is entitled to a full and complete defence and has the right to present motions, even when the Court and the prosecution are ready to proceed [12] .

Especially as, in this case, the Court was not available to hear the trial, as the docket was overcrowded. [ 40 ] For these reasons, the delay is not attributable to the defence. Conclusion concerning delays attributable to the defenCe [ 41 ] The total time, before deductions attributable to the defence, is 959 days. [ 42 ] Considering the foregoing reasons, the Court considers that there is no delay attributable to the defence. [ 43 ] The current net lead time is therefore 959 days. 2. Did the prosecution prove a discrete event?

Period from January 27, 2022 to June 6, 2022 (351 days) [ 44 ] The prosecution adds that, in the alternative, the Court should consider that the lawyers did not travel because of the pandemic and that this is a discrete event. She invites the Court to draw inspiration from judgments rendered by the Honourable Marie-Chantal Brassard [13] referring to the accumulation of files in Nunavik during the pandemic. [ 45 ] The defence points out that it was the Court that decided that it would not travel, and that the authorities allowed the Court and the lawyers to travel to Nunavik.

The defence added that the prosecution had not shown that the measures related to the pandemic, at that precise moment, were still a discrete event. [ 46 ] In the event that the Court concludes that the exceptional measures have been proved, it must deduct 351 days from the net period of 959 days.

This leaves a period of 608 days, or 19.99 months. [ 47 ] Considering that the time limit has already been exceeded by 18 months, the Court believes that it is not necessary to decide whether the prosecution has proved a discrete event. [ 48 ] However, the Court summarily stated that it would have considered the delays caused by the postponement of the file to January 27, 2022, as a discrete event.

The pandemic was a difficult one for Quebec as a whole, and the courts have generally concluded that measures related to the pandemic are distinct events. [ 49 ] What is more, organizing a traveling court is no simple matter, and there are many elements to consider before authorizing the safe movement of several people in Nunavik.

During a pandemic of this magnitude, government officials have a multitude of factors to take into account to ensure the safety not only of the people traveling with the Itinerant Court, but also of the citizens of Nunavik. [ 50 ] Finally, according to an e-mail sent by Judicial Services on December 21, 2021, [14] we read that Nunavik Public Health authorized the Court to travel, but with reduced staff. According to the e-mail from Ms. Sylvain, Interim Director of the Itinerant Court and the Kuujjuaq Courthouse, this was a rule enacted by Nunavik Public Health.

The Court does not see how the Itinerant Court could have transgressed this rule. The small staff selected to travel during this term was the minimum required to operate the court remotely. [ 51 ] Since the postponement of the trial is directly related to the restrictive measures put in place by Nunavik Public Health due to the pandemic, it seems obvious that at least part of this delay should be deducted as a discrete event. STAY OF PROCEEDINGS [ 52 ] The net delay is therefore around 20 months. This exceeds the 18-month ceiling, even before the trial begins. [ 53 ] The accused’s trial is set for June 22, 2023.

On that day, court starts at 9 a.m. and ends between 12 and 1 p.m. All participants in the Itinerant Court must prepare their court materials for departure to Amos.

[ 54 ] At present, for this day, there are about 20 hours of fixed trials, including a 5-hour trial for a detainee who is the priority of the day. The Court does not see any possibility of this case proceeding on June 22, 2023, and if the trial starts, it will obviously not be able to finish.

Thereafter, the Court will have to find two other available dates for the continuation of this trial. [ 55 ] Furthermore, it is common knowledge that there is no longer a date available to set a trial in Kuujjuaq's judicial calendar ending August 31, 2023. [ 56 ] The accused will have to wait until July 2023 to set a trial date, depending on the Court's new availability.

The first available trial date will therefore not be before September 18, 2023, resulting in a delay of around 23 months. [ 57 ] During the week of September 18, 2023, the Itinerant Court leaves Amos on Monday morning and begins court if all goes well around 2 pm. On Wednesdays, the Court moves to the community of Kangiqsualujjuaq, and on Fridays, the Court ends around 1 p.m. to allow people to travel. This leaves a period of about three days in the week to proceed with all the files.

This case alone requires that length of time. [ 58 ] Keep in mind that detainees will always have priority, and it is common knowledge that the trial calendar in Nunavik is fixed with between 15 and 45 hours of trials per day, including settlements, some appearances and trials [15] . The Court is of the opinion that there is no possibility in the near future of holding a trial of this length in the community of Kuujjuaq. [ 59 ] According to the Jordan framework, once a time limit has been exceeded, delays are presumed to be unreasonable.

These ceilings set by Jordan [16] are already quite lenient, and the majority of cases should be settled before these ceilings are reached [17] . [ 60 ] This presumptive ceiling was deemed necessary by the Supreme Court to give clear guidance to the State on how to comply with its constitutional obligations, but also to those who play an important role in ensuring that the trial are held within a reasonable time. [ 61 ] These actors include court administration officials, police officers, prosecutors, defendants and their lawyers, as well as judges [18] . [ 62 ] The State must comply with constitutional requirements by ensuring that the criminal justice system in Nunavik is adequately resourced to avoid delays. [ 63 ] The historical argument of mass volume and a dysfunctional system in Nunavik does not justify exceeding the 18-month threshold.

Nor can chronic institutional and systemic delays serve as a basis for exceeding the celling [19] . [ 64 ] Citizens' confidence in the justice system is undermined by extended delays. This trust is essential to the system's survival.

Without community support, the system loses its equilibrium [20] . [ 65 ] Moreover, unreasonable delays amplify victims' suffering and prevent them from moving on [21] . [ 66 ] The Jordan ruling does not distinguish between regions, and the right to a trial within a reasonable time is a right for all citizens. [ 67 ] In this case, the Court has no choice but to declare a stay of proceedings. This step must be taken in order to promote a functional justice system for the benefit of the community, the victim and the accused.

FOR THESE REASONS, THE COURT : [ 68 ] DECLARES that the right of the applicant to be judged within a reasonable delay pursuant to

section 11(

b) of the Canadian Charter of Rights and Freedoms was violated; [ 69 ] ORDERS a stay of proceedings pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms . __________________________________ NATHALIE SAMSON, J.C.Q. Mtre Christine Renaud Counsel for the applicant-accused Mtre Hannah Brais-Harvey Director of Criminal and Penal Prosecutions Counsel for the prosecution Dates of hearing: April 11, 2023, and June 19, 2023.