2015 QCCQ 4836, 2015 QCCQ 4836

R. c. Duchesne 2015 QCCQ 4836 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ROBERVAL LOCALITY OF ROBERVAL Criminal Division N° : 155-01-000575-134 DATE: May 25, 2015 ______________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE SIMARD, J.C.Q. ______________________________________________________________________ THE QUEEN Complainant v. MARC DUCHESNE Accused ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Court has before it a motion under subsections 11(

b) and 24(1) of the Canadian Charter of Rights and Freedoms . [ 2 ] Marc Duchesne is charged with having, on February 15, 2013, operated his motor vehicle with a blood alcohol level over the legal limit and with impaired driving. [ 3 ] On March 9, 2015, the hearing for Marc Duchesne’s trial was set to begin. He presented a motion for a stay of proceedings, arguing his right to be judged within a reasonable time period, which he claims was violated. [ 4 ] The prosecution opposes this motion.

FACTUAL AND PROCEDURAL BACKGROUND (chronology) February 15, 2013 [ 5 ] This is the date of the alleged commission of the offences with which Marc Duchesne was charged. [ 6 ] On that date, Officer Stéphanie Gauthier and her partner André Chartier went to the scene of an accident on L’Anse Boulevard in Roberval. [ 7 ] Marc Duchesne was arrested by Officer Gauthier, who also ordered him to provide a breath sample. Marc Duchesne was driven to the police station, where he failed the breathalyzer tests. [ 8 ] Marc Duchesne was released that same day with a summons to appear on May 22, 2013.

April 23, 2013 [ 9 ] The information was filed on this date. May 22, 2013, July 22, 2013, August 12, 2013, September 6, 2013, and September 27, 2013 [ 10 ] On May 22, 2013, Marc Duchesne appeared and on September 27, 2013, after a few postponements, he asked for a trial date to be set. That date was set for May 8, 2014.

May 8, 2014 [ 11 ] On May 8, 2014, the trial was set to get underway. Officer Gauthier could not be present, however, because of a significant decline in a loved one’s health. Because of the importance of Officer Gauthier’s testimony, the trial was postponed. [ 12 ] Officer Gauthier was on leave from work between May 5 and early July of 2014. She was also given leave from work from late September to early December of 2014. [ 13 ] At the hearing held on May 8, 2014, the prosecution offered to set the trial for a day during the week of November 17, 2014.

Counsel for Marc Duchesne stated that he was available on any date until November 15, 2014, but that he would not be available during the last two weeks of November. [ 14 ] Ultimately, the trial was set for December 10, 2014. December 10, 2014 [ 15 ] On that date, the case was postponed due to a crowded trial calendar. March 9, 2015 [ 16 ] The trial got underway before the undersigned with a motion for unreasonable delay presented by the defendant Duchesne.

TESTIMONY OF MARC DUCHESNE [ 17 ] The defence’s case relies essentially on the testimony of Marc Duchesne. [ 18 ] Marc Duchesne is thirty years old and does not have a criminal record. [ 19 ] His physical medical condition merits consideration. In July of 2007, during an exercise led by the Canadian Armed Forces, his helmet was struck by a bullet. As a result, he suffered a concussion. [ 20 ] The accused was declared to be an invalid and was unfortunately obliged to leave the Armed Forces.

Since then, he has suffered from memory loss; indeed, the more time goes by, the more he forgets. [ 21 ] With respect to the present charges, his capacity to remember the offence is such that he has only snippets of memories. He remembers only if he reads the reports. The impact on his memory is amplified because of the stress this situation has placed on him. [ 22 ] The cross-examination indicated that Marc Duchesne did not consult a physician.

POSITIONS OF THE PARTIES [ 23 ] The defence points out that twenty-two and a half months passed between the information and the first day of trial, from which Duchesne deducts two months and five days that he recognizes as attributable to him, from the beginning of the case to September 27, 2013. [ 24 ] He considers the remaining period of twenty months and ten days to be unreasonable because of his failing memory, which prevents him from making full answer and defence. [ 25 ] For its part, the prosecution refutes the characterization of the periods suggested by the defence.

Instead, it suggests that the institutional delays are ten months and twelve days (the period between September 27, 2013, and May 8, 2014, and that between December 10, 2014, and March 9, 2015). [ 26 ] It does not consider this delay unreasonable, especially because it argues that it was never informed of the specific circumstance of the weakness of the defendant’s memory. ANALYSIS AND DECISION

a) THE LAW [ 27 ] The criteria for assessing the reasonableness of a delay for the accused to be tried are set out by the Supreme Court in Morin : [1] the length of the delay; a total or partial waiver by the accused of constitutional protection; the reasons for the delay; and a prejudice. [ 28 ] On this subject, authors Béliveau and Vauclair had the following to say: [2] [ translation ] A court hearing a motion under subsection 11(

b) must render a judicial ruling by balancing these four factors; there is no mathematical formula. The Supreme Court suggested that the first three criteria should be examined first, to determine whether the delay incurred is prima facie excessive, whether the accused waived it, or whether the accused is responsible for it. Then, it must be decided whether the accused has shown that there was prejudice, in which case it must be weighed against the interests of society. [ 29 ] As for the specific criterion of the reasons for the delay, they are described by the Court of Appeal, per Dalphond J.A.: [3]

[translation] [12] As for the reasons for the delay between the time the charges are laid and the trial, case law generally classifies them into fourcategories: institutional delays, inherent delays, delays caused by the defence, and delays caused by the prosecution. There is also aresidual category that appears to be recognized, referred to as other delays. [13] I will start with the delays inherent to the proceedings brought.

The progress of criminal files includes steps such as appearance,choice of counsel, hearing on release if the accused is detained, disclosure of evidence, preparation of expert reports if need be, time forcounsel to prepare, and so on.

The more complicated the case, the more of these steps there will be and the more likely they will be tocause lengthy delays (Morin, supra at 791-792). [14] Insofar as these steps are performed with reasonable diligence, this type of delay cannot justify a stay of proceedings since they areinherent to the proceedings brought. [15] I will now consider institutional delays, which have been the subject of many judgments since the Canadian Charter came intoforce.

Institutional or systemic delays refer to the period of time between the moment the parties are ready and the date the system isready to hear them due to the immediate unavailability of judicial resources. While such a delay is unavoidable in practice, the factremains that the government has a constitutional obligation to commit sufficient resources to prevent any unreasonable delay of thisnature. It is up to the courts to ensure that this obligation is adequately met; therefore, beyond a certain period of time, they will rejectthe argument of inadequate resources to explain the failure to hold a trial.

In short, the judicial exercise consists of assessing thereasonableness of the situation, taking into account the prejudice to the accused, any specific situation temporarily prevailing in a region,the complexity of the case, and the trial time required. The greater the prejudice, the shorter the acceptable period of institutional delaywill be. [16] In Morin and R v.

Godin, 2009 SCC 26 , 2009 SCC 26, [2009] 2 S.C.R. 3, the Supreme Court states that a waiting period of8 to 10 months for a single stage trial before a provincial court is acceptable, to which 6 to 8 months may be added for a committal fortrial after a preliminary hearing, for a total of 14 to 18 months in such cases. Otherwise, the courts might find that the trial was undulydelayed. [17] Delays that may arise from the actions of the prosecution must also be borne in mind.

Thus, if the prosecution seeks a postponementto prepare its case, fails to disclose evidence in its possession resulting in the defence filing an application for a postponement, or fails toobtain forensic evidence in a reasonable time, the resulting delays will be attributed to the prosecution rather than be considered inherent.This third category of delay may be a source of serious prejudice to the defence and thereby justify a stay of proceedings, especiallywhen added to significant institutional delays. [18]Should a delay arise from the actions of the accused, however, it will be taken into account in the balancing exercise and will not beconsidered to be detrimental to the accused.

This is the case, for example, where an accused changes counsel, seeks a postponement tobetter prepare, opts for a preliminary inquiry (which always postpones the date of the trial), chooses not to take the first available date,re-elects or seeks to postpone the trial for any reason whatsoever (which in all likelihood entails a new institutional delay).

In suchcircumstances, it is not a question of laying blame on the accused but acknowledging that the exercise of these rights is likely to causedelays about which they cannot then legitimately complain when seeking a stay of proceedings. [19] There remains the fifth category referred to as other delays. This label is given to delays that, strictly speaking, do not fall under thecategories previously described. Examples often given include longer-than-usual deliberations to render judgment due to the judge’sillness, failure to act diligently, or disqualification.

In general, this type of delay will disadvantage the accused and will be attributed tothe prosecution (Morin, supra at 800; R v. Rahey, (SCC), [1987] 1 S.C.R. 588). [30] The significance of each criterion in this case must therefore be determined and then weighed against each other. (

b) Application of the legal rules

(1) The length of the delay [31] The accused was indicted on April 23, 2013. The parties declared that they were ready for trial on September 23, 2013. Thetrial began on March 9, 2015. [32] Between the indictment and the trial, there was a delay of one year, ten months, and fourteen days. Between the defence’srequest for a trial and the trial itself, there was a delay of one year, five months, and ten days.

(2) Waiver of delay [33] In this case, there is no waiver of one or more delays by the defence.[4] (3) the reasons for the delay (

a) delay between the information and the moment the parties were ready to go to trial [34] This delay began on April 23, 2013, and lasted until September 27, 2013, amounting to four months and five days. This periodis not contested by any of the parties and it is the only time period that the defence does not attribute to the Crown. Indeed, it was notuntil September 27, 2013, that the defence announced that it wanted a trial and consequently asked for a date to be set. It is an inherentdelay. (

b) Delay between September 27, 2013, and May 8, 2014

[ 35 ] The first available date for the trial was May 8, 2014. The length of the delay is seven months and twelve days. It is institutional. [ 36 ] Had the case proceeded on that date, the reasonableness of the delay would not be at issue. As explained below, however, there were two postponements. (

c) From May 8, 2014, to December 10, 2014 [ 37 ] This delay is due to the postponement of the trial the very morning of the hearing on May 8, 2014. On that date, the prosecution found out that the principal witness was not available because of a particular personal situation, i.e. the state of the witness’ brother’s health. [ 38 ] In light of the reasons given, the case was postponed. [ 39 ] How is this delay to be characterized? The impossibility of holding the trial is definitely not due to malicious or negligent conduct of the Crown.

Nor can it be attributed to a lack of resources or inadequate administrative action by the prosecutor. [ 40 ] In such circumstances, the Court does not believe that this delay may be characterized as an institutional delay. [ 41 ] This is supported by authors Béliveau and Vauclair, [5] who refer to Roncaioli . [6] [ 42 ] On this same subject, the Court of appeal for Ontario stated the following in R. v. Meisner : [7] Adjournments of a trial which are not requested by either party may occur for other reasons.

In this case the adjournment was found to be, “an example of one of those things that happens from time to time in the criminal process for which no one can be faulted and which almost inevitably requires an adjournment and rescheduling”.

Just as intake time is allowed when a case initially comes into the criminal justice system it is inherent in the process that some time must be allowed to reschedule matters that are adjourned for reasonable and unforeseen reasons for which no one can be faulted. [ 43 ] This delay will therefore be considered an inherent delay. [ 44 ] The question also arises as to the length of the inherent delay. When looking for a new trial date, the prosecution offered a single day in the week of November 17, 2014. The defence refused and agreed to take responsibility for the delay.

The last eighteen days will therefore be attributed to the defendant. (

d) From December 10, 2014, to March 9, 2015 [ 45 ] On December 10, 2014, the case did not proceed due to a crowded trial calendar. [ 46 ] Regional districts like Roberval have particular characteristics that are worth describing here. In addition to its foreseeable arduousness, a day of hearings is often interrupted by unexpected events, making its management difficult. Thus, in addition to the trials or preliminary inquiries set to be heard, there are always practice cases and bail hearings that by their nature must be given precedence and whose duration cannot be determined in advance.

An earlier trial may also extend longer than expected and upset the schedule. [ 47 ] No evidence was adduced about the specific reason for the crowded trial calendar on December 10, 2014. I have nothing before me to cause me to attribute it to malicious or incompetent action by the prosecution. [ 48 ] Nevertheless, the right to a trial within a reasonable time is a basic right. When citizens are given a trial date, they are entitled to believe that they will be heard. The defendant is not responsible for a lack of time.

This is definitely a matter for the organization of the courts and the resulting delays are therefore institutional. (

e) CONCLUSIONS ON THE REASONS FOR THE DELAY [ 49 ] In conclusion, the final computation of the delays according to their reasons results in the following: • Delay attributed to the defence: 23 days (November 17, 2014, to December 10, 2014). • Institutional delay: 10 months and 8 days (September 27, 2013, to May 8, 2014, and December 10, 2014, to March 9, 2015) • Inherent delay: 9 months and 13 days (April 23, 2013, to September 27, 2013, and May 8, 2014, to November 17, 2014)

(4) The prejudice [ 50 ] According to Morin , [8] prejudice is the fundamental element of the test under subsection 11(

b) of the Charter . Absent evidence of this element, proof of which is incumbent upon the accused, the litigant’s right cannot be found to have been undermined. [ 51 ] This prejudice is assessed in light of the following rights: - the right to liberty - the right to a fair trial - the right to security. [ 52 ] In this case, Duchesne has always been at liberty. He also had no conditions on his release. His freedom has never been

infringed. [ 53 ] As for the right to a fair trial, according to the defence, it arises from the specific medical condition of the defendant Duchesne, whose concussion considerably reduces the quality of his memory. [ 54 ] For any individual, the memory of past events progressively fades over time. The chronology and details of the events are consequently affected. [ 55 ] This phenomenon varies with the individual.

In Duchesne’s particular situation, it was quickly apparent: during his cross- examination, he stated that the impact on his memory of important events begins to be noticeable once three or four months have passed. [ 56 ] Duchesne did not disclose this particular problem to the Crown. [ 57 ] On September 27, 2013, when the date of May 8, 2014, was offered, the defendant did not apply for a speedy trial. [ 58 ] On May 8, 2014, a postponement was granted. All the prosecution’s witnesses – two police officers and one civilian witness – were present; Ms. Gauthier was not.

Even today, the defendant does not dispute that the postponement was granted fairly. [ 59 ] As counsel for both parties were looking for a date in the judge’s presence, counsel for the defendant stated that he was ready to proceed at any time except during the last two weeks of November. [ 60 ] When the date of December 10, 2014, was suggested, however, no specific remark in favour of an earlier date was made by the defendant or his representative, who even added [ translation ] “it is not a question of time periods”. [ 61 ] As for the circumstances underlying the postponement on December 1, 2014, the judge and counsel observed in the late afternoon of that day that it would be impossible to begin the trial and that a postponement was necessary.

The fact that the trial could not be continued the next day as counsel were unavailable played a significant

part in the decision to postpone the case. [ 62 ] Once again, no particular remarks were made with respect to the need for a speedy trial. [ 63 ] This failure to disclose is criticized by the Crown, which asserts that it could not respond to a situation it did not know existed. Counsel for the defendant maintains that he was not obligated to disclose his client’s particular situation because acknowledging the weakness of his memory would have benefitted the prosecution in a possible cross-examination. (

c) Balancing exercise [ 64 ] The delays attributable to the prosecution are ten months and eight days. They do not appear to be exceptionally long. [ 65 ] The particularity of the defendant’s prejudice dictates that we proceed with a specific analysis of the case. The delay itself, whether its nature or causes, is the first element. The second is the existence of a prejudice and its extent, which is the final condition essential to benefiting from the protection of subsection 11(

b) of the Charter . Ultimately, this is not an arithmetic exercise , but a balancing of the two elements. [ 66 ] Duchesne has a specific problem: he quickly loses his memory. I do not believe, however, that this factor in itself creates a right to a stay of proceedings. Memory loss is an element that will be considered when assessing the evidence. The Court of Appeal, in a different context, stated the following in R v. B.S .: [9] [ translation ]

(36) Amnesia certainly constitutes an element that a court will consider when assessing the evidence prior to reaching its verdict. But it does not justify a verdict of unfit for trial or a recommendation to stay proceedings... [ 67 ] On this subject, I would reiterate that the Charter in general and subsection 11(

b) in particular protect citizens from State conduct, which must be analyzed and weighed. [ 68 ] In this case, all the parties acknowledge that had the trial been held on May 8, 2014, it would have taken place within a reasonable time. The first postponement, resulting form the special circumstances of witness Gauthier, is not the result of the Crown’s inappropriate conduct. It cannot be responsible for the resulting delay. [ 69 ] That is not the case for the postponement on December 10, 2014, however, since it was the result of a crowded trial calendar.

This delay between December 10, 2014, and March 9, 2015, is the only one resulting from conduct for which the State may be criticized. [ 70 ] What of the fact that Duchesne’s particular situation was never disclosed to the Crown? [ 71 ] The prosecution’s criticism arises from the way in which trials are scheduled, where the Crown submits dates, which are then accepted or refused by the defence.

In this process, the Crown juggles a multitude of variables such as the priority that should be assigned to trials and proceedings where the accused are detained or that assigned to some cases because of their nature, while necessarily having to reconcile the calendars of the prosecutors and counsel for the defence. [ 72 ] In some cases, the complexity of the case, specific problems created by having many witnesses, and a sometimes unpredictable number of hearing days must also be taken into account. [ 73 ] It is thus obvious that when counsel for the prosecution submitted dates to the defence, they were juggling multiple factors. [ 74 ] The particularity of this case is that the ground for seeking a stay of proceedings was unknown to the prosecution because it

was never disclosed. [ 75 ] In the context of proceedings for protection from State conduct, it would be difficult if not impossible to level criticism at the state based on an unusual situation it did not even know could have specific consequences. [ 76 ] Managing the reasonableness of the delays requires the defence to be proactive. In this case, the defence never insisted on receiving a speedy trial. [ 77 ] On the contrary, on May 8, 2014, the defence stated that this case had no unreasonable delays. Surely the defence’s remark was appropriate when it was made.

The fact remains that it is an argument supporting a finding that the delay until December 10 was not unreasonable. [ 78 ] The postponement to December 10 was not the subject of any particular remarks by the defence. [ 79 ] Yet, from the outset, the defendant’s situation was special. His memory begins to significantly fail after three or for months, even for memorable events. In this situation, even the first date on May 8, 2014, was unsatisfactory.

Nevertheless – and this is what is baffling – no particular remarks were made when the date of May 8 was chosen or during the postponements that took place on May 8 and December 10. [ 80 ] It was not necessary that the defence disclose Duchesne’s problems in detail. The Crown, however, had to have sufficient information to submit earlier dates to the defendant. [ 81 ] The delay between December 10, 2014, and March 9, 2015, is attributable to the State. The brevity of this delay, however, and the failure to apply for a speedy trial prevent the Court from granting the defendant’s motion for a stay of proceedings.

FOR THESE REASONS, THE COURT: DISMISSES the defendant’s motion for unreasonable delay. __________________________________ PIERRE SIMARD, J.C.Q. Mtre Amélie Savard Criminal and penal prosecuting attorney Mtre Denis Otis Lalancette Otis Counsel for the defence