2023 QCCQ 10620, 2023 QCCQ 10620

Matieuski c. R. 2023 QCCQ 10620 COURT OF QUÉBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MINGAN “Criminal Division” No: 652-01-015026-202 DATE: December 20, 2023 ______________________________________________________________________ PRESIDING: THE HONOURABLE VICKY LAPIERRE, J.C.Q. ______________________________________________________________________ KIRBY DENNIS MATIEUSKI Applicant v. HIS MAJESTY THE KING Respondent ______________________________________________________________________ JUDGMENT ON AN APPLICATION FOR A STAY OF PROCEEDINGS FOR UNREASONABLE DELAY [1] ( Sections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms ) ______________________________________________________________________ Overview [ 1 ] The Court must rule on an application for a stay of proceedings filed by the applicant, who alleges unreasonable delay. [ 2 ] In a context of domestic violence, the applicant faces charges of mischief (ss. 430(1)(

a) and (4)(

b) Cr. C. ), criminal harassment of Jody Green and Craig Willcott (s. 264(1)(3)( b )) and causing a disturbance (s. 175(1)(a)(

i) Cr. C. ). [ 3 ] The estimated length of the trial was three hours and the case was not particularly complex. [ 4 ] The charges were prosecuted by

summary conviction on December 15, 2020 . The alleged facts occurred in Latabatière located in the lower north shore. [ 5 ] The application for a stay of proceedings because of a violation of constitutional rights was filed in Sept-Îles on September 13, 2023, when the applicant was authorized to attend the hearing remotely. [ 6 ] At the time of the hearing of the application, the parties agreed that the total delay since the information was 1,002 days. The applicable ceiling following Jordan [2] had therefore been largely exceeded.

[ 7 ] According to the Crown’s own representative, no delay was attributable to the defence. A table [3] prepared by the Crown’s representative instead refers to exceptional circumstances to explain the delays at issue. The defence has not made any clear waiver of delays, whether explicit or implicit. [4] [ 8 ] Exceptional circumstances that affect the file’s progression must be deducted from the net delay. [ 9 ] The parties agree that the delay from January 19, 2022, to August 25, 2022, constitutes exceptional circumstances related to the COVID-19 pandemic.

A court sitting was indeed cancelled for this reason on January 19, 2022. [ 10 ] Three other periods are at issue to determine if there were exceptional circumstances within the meaning of Jordan . [5] These periods are as follows: • from August 25, 2022, to February 16, 2023 (175 days); • from February 16, 2023, to August 24, 2023 (189 days); • from August 24, 2023, to September 11, 2023 (18 days); [6] [ 11 ] For the Crown, these three periods represent exceptional circumstances and must therefore be entirely subtracted from the computation of the total delay. [ 12 ] For the applicant, these delays are entirely attributable to the Crown. [ 13 ] The applicant has been represented by the same lawyer since the start of the file, whereas the Crown has been represented by various criminal and penal prosecutors. [ 14 ] From the moment the case was set down for trial, the applicant declared that he was ready and accepted the first available date at the first opportunity offered to him. [ 15 ] The applicant has been at large pending his trial and has always been at large.

Background [ 16 ] The facts alleged took place in the village of La Tabatière located in the Lower North Shore. It is a fishing village located in the municipality of Gros-Mécatina. This village is not connected by road to the rest of the province of Quebec. The village is accessible by boat and via the White trail by snowmobile in the winter. The village is also accessible by plane. [ 17 ] Historically, criminal and penal files from La Tabatière are heard in the St-Augustin village located west of La Tabatière.

St- Augustin is a municipality located in the regional county municipality of Golfe-du-Saint-Laurent, which is also part of the administrative region of the North Shore. This village is not connected to the rest of the province of Quebec by road. [ 18 ] St-Augustin is accessible by boat and via the White trail by snowmobile in the winter. The village is also accessible by plane. Flights to and from this location are scheduled on a regular basis. [ 19 ] St-Augustin and La Tabatière are located in the judicial district of Mingan.

The itinerant court goes to St-Augustin for criminal and penal matters only twice a year. One court session is scheduled at the end of the summer and another in the winter. There is no permanent installation on site, and the Court sits in a community hall where all the equipment for court purposes, [7] and all the human resources are moved for the court sessions that take place. Generally, files are dealt with on site, whether for appearances, pro forma postponements or case direction, settlements, and trials. [ 20 ] The fact that the Court sits twice a year inevitably affects the time limits for holding trials.

Approach [8] [ 21 ] The Court must first determine the total delay, and then, deduct from it the delay attributable to the defence. [ 22 ] The net delay will be used to calculate the reasonable delay. If it is above the ceiling established by the Supreme Court, it will be presumed unreasonable. If it is below this ceiling, the defence must demonstrate that it is unreasonable. [ 23 ] When the delay exceeds the ceiling, the Crown can demonstrate that it is reasonable.

To succeed, the Crown must establish exceptional circumstances, either by proving discrete events or by demonstrating that the case is complex. [ 24 ] Transitional exceptional circumstances do not apply in the case at bar because the charges were laid several years after Jordan . [9] Issues [ 25 ] Has the Crown presented evidence of exceptional circumstances for the three periods at issue? • from August 25, 2022, to February 16, 2023 (175 days); • from February 16, 2023, to August 24, 2023 (189 days); • from August 24, 2023, to September 11, 2023 (18 days); [10]

[ 26 ] The Court finds that the delays are unreasonable because they exceed the ceiling of 18 months. Here is why. Analysis [ 27 ] Period from August 25, 2022, to February 16, 2023 (175 days); [ 28 ] The Court reproduces the relevant discussions that took place in the courtroom on August 25, 2022. [ translation ] By Mtre Mathieu Tshernish-Jourdain: COUNSEL FOR THE DEFENCE My client is not present considering the submissions, which you made earlier this week.

By Mtre Thierry Pagé-Fortin: CROWN PROSECUTOR Yes, indeed, I’m going to officially repeat what we said, practically word for word, in Kirby Matieuski’s situation, both the accused, who is in La Tabatière and would have had to take a plane to come to his trial today, and the victims, who are from the same place, and when we tried to reserve accommodation for the victims, who want to continue their legal process, with the legal proceeding, including, Judy Green, the complainant, and Raymond Maurice, the independent witness.

In the end, they were confronted with the problem that there was no accommodation here in this community, and so, we had already made a request to cancel the summonses indicating that we would ask for a postponement today... . BY THE COURT That’s fine. BY THE CROWN ... I told my colleagues, who will be present in February I’m going to ask for the case to be postponed to the next session, although there’s a lot scheduled in court that day, we note that the attendance rate is low, unfortunately,... BY THE COURT Yes BY THE CROWN ...in this case, we expect that the people that are present, so I’m going to ask you to

schedule it for February 16, even if there are already a lot of things. BY THE COURT Yes BY THE CROWN And the steps to make reservations, no, I’m sorry, I’ll start over. It’s possible that the problems we’re having this summer won’t be repeated in the winter since… BY THE COURT Yes... BY THE CROWN ...since (inaudible). BY THE COURT That’s right. BY THE CROWN So, people will make a return trip by snowmobile. That’s why I’m convinced that this case, these cases can finally proceed on the date that will be scheduled, if it’s February 16, so that’s it, that will be the date.

BY THE COURT Perfect, so the Court, for the reasons given, authorizes the postponement of the case to February 16, the estimated length?

[ 29 ] The Court must determine whether the lack of a room to house the Crown’s witnesses constitute exceptional circumstances outside the Crown’s control, in the sense (1) that they are reasonably unforeseen or reasonably unavoidable. Last,

(2) Crown counsel cannot reasonably remedy the delays when they arise. [ 30 ] The Court agrees that the occasional lack of accommodation in a community like St-Augustin could in some respects represent an exceptional circumstance. [ 31 ] However, the Crown’s evidence in this regard is not very extensive. The itinerant court has sessions every six months, when were attempts made to reserve rooms? Were they proactive? Were the reservations made at the last minute? The Court does not know. [ 32 ] Were alternative solutions considered?

Could the case be heard in another community on the Lower North Shore, in Romaine, or Blanc-Sablon, for example? Or even, was proceeding in Sept-Îles considered? [ 33 ] On August 24, 2022, this case had already been in existence for 618 days since the filing of the information and was a case that could be described as in default considering the delays. Priority must be given to cases that have faltered, especially since this is a domestic violence matter. [ 34 ] Here, the lack of accommodation can be likened to an exceptional circumstance.

However, this isolated situation is not the only reason for the 175-day delay that subsequently occurred. This long delay is due to multiple factors. [ 35 ] It stems in particular from the fact that the itinerant court is at the service point in St-Augustin only twice a year, with approximately six months between each session. This leads to institutional delays. The delay also stems from the fact that the Crown has not really responded to the situation to conclude the trial below the ceiling.

No alternative solution was put forward or even suggested despite the fact that the case was already in default with regard to the delays. [ 36 ] Based on the foregoing, the Court estimates that out of the 175 days pertaining to this first period at issue, only 88 days can be deducted as exceptional circumstances, considering the occasional lack of accommodation for the Crown’s witnesses on August 25, 2022.

For all practical purposes, the Court divides this delay in half. [ 37 ] From February 16, 2023, to August 24, 2023 (189 days); [ 38 ] The Court reproduces the relevant discussions that took place in the courtroom on February 16, 2023. [ translation ] Mtre Patrick Smith-Morin CROWN PROSECUTOR So, let me explain the situation to you, Your Honour. I’m going to request a postponement. We’re at the stage of the trial. That’s it, it was at trial. I want to request a postponement, let me explain the situation to you. The Crown’s main witness, Ms. Green, contacted CAVAC at the beginning of the week.

I believe the Court is aware of this information, there was a major snowmobile accident near La Tabatière last Friday, requiring transportation by helicopter. It was the daughter of, of the main victim in the file. She told us that her daughter was airlifted to the hospital in St.John’s, Newfoundland and that she had to look after her grandchildren; therefore, she could not travel by snowmobile today. So, I’m requesting that the trial be postponed for this reason. BY THE COURT Mtre Tshernish, nothing to say? COUNSEL FOR THE DEFENCE Given the situation, no. However, my client was ready to proceed.

On the other hand, when I received the information, Mr. Matieuski was living in La Tabatière. So instead of travelling four hours by ski-doo, he opted not to come in today. He was prepared to travel if necessary. BY THE COURT OK so, given the absence of the witness due to illness, the Court postpones the trial until August 24, 2023. [ 39 ] The Court must determine whether the snowmobile accident suffered by the complainant’s daughter constitutes an exceptional circumstance, outside the Crown’s control, in the sense that it was reasonably unforeseen or reasonably unavoidable.

Last, it must demonstrate that Crown counsel cannot reasonably remedy the delays that occurred. [ 40 ] Paragraph 72 of Jordan specifically discusses medical and family emergencies as discrete events. Crown counsel state clearly in their submissions that the complainant had a family emergency on February 16, 2023. [ 41 ] However, this isolated situation is not the only reason for the 189-day delay, which was subsequently added. Once again, this long delay is due to multiple factors.

The Court considers that the scarcity of itinerant court sessions at the St-Augustin service point is an institutional problem. [ 42 ] Despite a domestic violence case fraught with delays that continue to worsen dangerously, the Crown did not suggest or implement any alternative solution.

[ 43 ] On February 16, 2023, the case was scheduled for trial for the third time. [ 44 ] Based on the foregoing, the Court considers that out of the 189 days pertaining to this first period at issue, only 95 days can be deducted as exceptional circumstances considering the complainant’s family emergency. For all practical purposes, the Court divides this delay in half. [ 45 ] From August 24, 2023, to September 13, 2023 (20 days); [11] [ 46 ] On August 24, 2023, the trial was postponed again. This postponement was due to several reasons.

One, the Court considered that the faulty technological equipment in the community hall used as the courtroom did not allow the Crown’s witnesses to attend the hearing remotely. The witnesses’ physical attendance at the trial was deemed necessary. [ 47 ] Two, the issue of the witnesses’ accommodation in Saint-Augustin persisted. There was no way the Crown was going to force its witnesses to travel by boat, fearing for their safety.

Ultimately, Crown counsel learned on the day of the trial that the main witness had COVID-19. [ 48 ] The trial was therefore postponed to a later date. [ 49 ] The Court then offered to hear the application for unreasonable delays the same day, since the Crown’s witnesses were not required to be in attendance. However, in light of the excess workload, the Crown did not prioritize the hearing of this application. Thus, a proposal was made to have the hearing take place in Sept-Îles at the next available date by allowing the persons concerned to join the hearing remotely.

The Sept-Îles courthouse has the required technology to do so. [ 50 ] The Court must determine whether the COVID-19 illness affecting the complainant on August 24, 2023, constitutes an exceptional circumstance, outside the Crown’s control, in the sense that it was reasonably unforeseen or reasonably unavoidable.

Last, it must demonstrate that Crown counsel cannot reasonably remedy the delays that occurred. [ 51 ] Although few details have been provided about the complainant’s condition, the Court believes that the COVID-19 illness can constitute an exceptional circumstance, when it affects an individual in such a way that he or she cannot give a proper testimony. [12] [ 52 ] The complainant’s illness is not the only reason that led to the fourth postponement of the hearing on August 24, 2023.

Added to this reason is the lack of technological equipment to allow the complainant to testify remotely and the lack of available accommodation for this particular court session in Saint-Augustin. [ 53 ] Based on the foregoing, the Court considers that out of the 20 days pertaining to this third period at issue, only 10 days can be deducted as exceptional circumstances considering the complainant’s COVID-19 illness on August 24, 2023. For all practical purposes, the Court divides this delay in half.

Conclusion [ 54 ] The Court considers that all Canadians have the same constitutional rights whether they reside in Quebec, Sept-Îles, La Tabatière, or Unamen Shipu. [ 55 ] The historical argument of a dysfunctional itinerant court system does not justify exceeding the 18-month threshold.

Nor can chronic institutional and systemic delays serve as a basis for exceeding the Jordan ceiling. [ 56 ] The table below outlines the findings of the Court following a full analysis of the delays as at September 13, 2023: Dates Stage Number of days between the events Characterization of the delay December 15, 2020 Information 37 days Inherent January 21, 2021 Appearance, disclosure of evidence and postponement to the next session, that is, August 25, 2021 216 days Inherent August 25, 2021 File scheduled for trial on January 19, 2022 147 days Institutional January 19, 2022 Court session cancelled due to COVID-19.

Trial was postponed to August 25, 2022. 218 days The defence admits that this delay is an exceptional circumstance August 25, 2022 Crown’s application for postponement 175 days Exceptional circumstance: 88 days Institutional/Crown: 87 days

February 16, 2023 Crown’s application for postponement 189 days Exceptional circumstance: 95 days Institutional/Crown: 94 days August 24, 2023, to September 13, 2023 Crown’s application for postponement 20 days Exceptional circumstance: 10 days Institutional/Crown: 10 days [ 57 ] On September 13, 2023, the total number of delays was 1,002 days. 411 days should be deducted as exceptional circumstances. The net delay on September 13, 2023, was 591 days.

This exceeds the 18-month ceiling (548 days). [ 58 ] According to the Jordan framework, [13] once a ceiling has been exceeded, delays are presumed to be unreasonable. The Jordan ceiling is already quite lenient, and the majority of cases should be resolved before these ceilings are reached.

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 trials are held within a reasonable time. [14] [ 59 ] These actors include court administration officials, police officers, Crown prosecutors, accused persons and their counsel, as well as judges. [15] [ 60 ] The State must comply with constitutional requirements by ensuring that the criminal justice system of the Est-du-Québec itinerant court is adequately resourced to avoid delays. [ 61 ] 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. [16] [ 62 ] Moreover, unreasonable delays amplify victims' suffering and prevent them from moving on. [17] [ 63 ] Last, the Jordan ruling does not distinguish between regions, and the right to a trial within a reasonable time is a right for all citizens, including the citizens of the Lower North Shore. [ 64 ] 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. [18] FOR THESE REASONS, THE COURT: [ 65 ] DECLARES that the right of the accused to be judged in a reasonable delay, as stated in

section 11(

b) of the Canadian Charter of Rights and Freedoms , was violated. [ 66 ] ORDERS a stay of proceedings pursuant to section 24(1) of the C anadian Charter of Rights and Freedoms . __________________________________ Vicky Lapierre, J.C.Q. Mtre Mathieu Tshernish-Jourdain For the applicant Mtre Marisol Guerrero-Clusiau For the Crown Date of hearing: September 13, 2023