2013 QCCA 671, 2013 QCCA 671

Unofficial English Translation R. c. Auclair 2013 QCCA 671 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004943-112 (500-36-005445-104) (500-01-020150-097) DATE: April 25, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. GUY GAGNON, J.A. JACQUES J. LEVESQUE, J.A. HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v.

GUY AUCLAIR ET AL. [1] RESPONDENTS – Applicants – Accused CORRECTI VE JUDGMENT [ 1 ] WHEREAS a typographical error was made in paragraph 103 of the judgment rendered on April 11, 2013; [ 2 ] WHEREAS the second sentence of this paragraph reads as follows: "No one can deny that these are among the most serious offences in the Criminal Code ," when it should have read: "No one can deny that these are among the most serious criminal offences ". [ 3 ] WHEREAS this error should be corrected; [ 4 ] For these reasons, the Court: [ 5 ] AMENDS the text in paragraph 103 of the judgment rendered on April 11, 2003, so that its second sentence reads as follows: [103] … No one can deny that these are among the most serious criminal offences . [ 6 ] FRANÇOIS DOYON, J.A.

GUY GAGNON, J.A. JACQUES J. LEVESQUE, J.A. Mtre Marc Cigana Mtre Andrée Vézina For the Director of Criminal and Penal Prosecutions For the Appellant Mtre Louis Belleau Louis Belleau, Attorney and Mtre Christian Desrosiers Desrosiers Joncas Massicotte

and Mtre Annie Lahaise Annie Lahaise, Attorney For the respondents Date of hearing: January 16, 2013 [Ed.: For the sake of confidentiality, SOQUIJ has redacted the list of respondents (Schedule 1) from this judgment, in compliance with the publication ban.] R. c. Auclair 2013 QCCA 671 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-10-004943-112 (500-36-005445-104) (500-01-020150-097) DATE: April 11, 2013 CORAM: THE HONOURABLE FRANÇOIS DOYON, J.A. GUY GAGNON, J.A. JACQUES J. LEVESQUE, J.A. HER MAJESTY THE QUEEN APPELLANT – Respondent – Prosecutrix v.

GUY AUCLAIR ET AL. [2] RESPONDENTS – Applicants – Accused JUDGMENT [1] The appellant appeals from a judgment of the Superior Court, District of Montreal (the Honourable Mr. Justice James L. Brunton), rendered on May 31, 2011, [3] which ordered a stay of proceedings on counts 2 to 7 of the indictment due to unreasonable delays; [2] For the reasons of Doyon and Gagnon, JJ.A., THE COURT : [3] DISMISSES the appeal. [4] For his part, Levesque, J.A. would have allowed the appeal for the following reasons of law:

(1) The trial judge erred in law by considering certain anticipated delays as unreasonable without having taken into account certain applicable factors;

(2) He committed an error in law equivalent to an excess of jurisdiction by creating a situation that unfairly and irreparably damaged the position of the prosecution. FRANÇOIS DOYON, J.A.

GUY GAGNON, J.A. JACQUES J. LEVESQUE, J.A. Mtre Marc Cigana Mtre Andrée Vézina Counsel for the Director of Criminal and Penal Prosecutions For the Appellant Mtre Louis Belleau Louis Belleau, Attorney and Mtre Christian Desrosiers Desrosiers Joncas Massicotte and Mtre Annie Lahaise Annie Lahaise, Attorney For the respondents Date of hearing: January 16, 2013 REASONS OF DOYON, J.A. [5] Desperate times call for desperate measures. [6] This case is unique.

In April of 2009, a police operation known as SharQ led to the arrest of more than 150 individuals whom the prosecution alleged were members of or in some manner related to the Hells [4] Angels. These individuals are the respondents. [ 7 ] On October 5, 2009, the director of Criminal and Penal Prosecutions authorized the filing of a direct indictment containing 29 charges against these individuals, including one for conspiracy to commit murder, 22 for murder, and a number for various drug trafficking offences.

These charges cover a period of nearly 20 years and stem from more than 70 police investigations of unprecedented scope. [5] According to the uncontradicted testimony of the respondents, it would take more than 7 years, at a rate of 24 hours a day, 7 days a week, to hear all of this evidence. If all of the exhibits were printed and stacked, they would form a tower 145 kilometres high – equal to 371 Empire State Buildings . The volume of evidence unearthed in the well-known Printemps 2001 operation represents, at most, 17% of what is at issue here.

In addition, several of the respondents are in detention even though, after nearly four years, none of the witnesses have yet been heard on the merits. [ 8 ] The trial judge was named to manage this case. He noted that there were an uncommon number of difficulties and gaps, particularly with respect to the disclosure of and access to the evidence. As the difficulties began to pile up, he took things in hand, as it was his duty to do.

As Casey Hill, J. has pointed out: [6] Originally cast in terms of inherent authority to control the processes of the court and prevention of abuse of the process, it is today recognized that a trial judge has a duty to manage the trial process balancing fairness to the parties as well as efficient and orderly discharge of court process. Judicial management of litigation recognizes that “there is more at stake than just the interests of the accused”. Management involves control, direction and administration in the conduct of a trial.

This power, settled within a broad discretion, relates to the entirety of the trial proceeding extending beyond the scope of pre-trial case management rules designed for “effective and efficient case management”. [ 9 ] This was the context in which the trial judge issued a number of orders, including an order to sever the counts and the accused, an order for the disclosure of evidence to be more complete, and most significantly, an order to stay proceedings on counts other than conspiracy to commit murder and murder because he found the upcoming delays to be unreasonable.

This last decision, rendered on May 31, 2011, is the subject of this appeal. [ 10 ] Therefore, the issue is whether the appellant has demonstrated that the trial judge erred by ordering a stay of proceedings on the counts other than conspiracy to commit murder and murder, on the grounds that the delays – including the anticipated delays – were unreasonable? I find that the answer is no. In this respect, it should be noted that the judge was in a position to assess the situation as a whole and that his detailed knowledge of the file attracts a high degree of deference.

BACKGROUND [ 11 ] At this point, it is useful to identify the nature and scope of the various counts. They are: Count 1: conspiracy to commit murder, from July of 1994 to July of 2002; Count 2: conspiracy to traffic in drugs, from May of 1992 to May of 1997;

Count 3: drug trafficking, from May of 1992 to May of 1997; Count 4: conspiracy to traffic in drugs, from May of 1997 to April of 2009 (counts 2 and 4 were severed due to legislative amendments in 1997); Count 5: drug trafficking, from May of 1997 to April of 2009 (counts 3 and 5 were also severed due to legislative amendments); Count 6: criminal organization offence, from May of 1997 to January of 2002; Count 7: criminal organization offence, from January of 2002 to April of 2009 (counts 6 and 7 were severed due to legislative amendments); Counts 8 to 29: 22 murders between October of 1996 and August of 2001. [ 12 ] The respondents asked for a stay of proceedings and for the indictment in its entirety to be quashed on the basis of its illegality, the unreasonable delays, the impossibility of mounting a defence, and abuse of process.

In particular, they alleged that the file was so large that they could never mount a defence or have a fair trial within a reasonable time. [ 13 ] As they make clear in their application, which is over 350 paragraphs long, the conduct of the prosecution (the respondent in the application) is at the core of their arguments: [ translation ] 4 - The applicants intend to demonstrate that the filing of this direct indictment constitutes a clear and deliberate abuse of process; 5 - The respondent, suffering from tunnel vision as a result of its single-minded desire to eradicate the Hells Angels gang, exercised its discretionary power to file a direct indictment that was abusive and in violation of well-recognized judicial standards, thereby disregarding the applicants' constitutional right to procedural fairness, the resources of the judicial system, and the public interest. 6 - The evidence will show that the respondent prematurely requested the applicants' arrest in April of 2009, knowing that it would not be able to disclose the Crown evidence promptly and in accordance with the teachings of the Supreme Court. 7 - This decision, however, led to the incarceration of nearly all of the members and persons either directly or indirectly related to the Hells Angels of Quebec, and made their applications for release difficult and unpredictable, thus achieving their first objective with regard to this group, namely, their incarceration, at least for the several months or years it will take to complete judicial proceedings. [ 14 ] Here is a

summary of the allegations in the application: Arbitrary detention; Unreasonable delays; The right not to be deprived of release on reasonable bail without just cause; The preconceived idea of the director of criminal and penal prosecutions when authorizing the charges without analysis of the individual responsibilities of the accused; The failure to comply with

section 589 of the Criminal Code ; The overloading of the indictment; Territorial jurisdiction; The insufficiency of details in the indictment; The disclosure of evidence, which is both too substantial and inadequate; The violation of the rules of autrefois acquit, autrefois convict, and res judicata; The filing of the direct indictment by the director of criminal and penal prosecutions, in violation of his own guidelines and the principles upheld in the case law. [ 15 ] The trial judge rejected most of their arguments, but he accepted those pertaining to unreasonable delays with respect to counts 2 to 7 and consequently stayed proceedings on those counts. [ 16 ] In the view of the appellant, the trial judge erred in so doing.

Obviously, the respondents argue that the judge was correct to stay proceedings, although they add that he should have accepted their other complaints and stayed proceedings on all the charges. Indeed, in their conclusions they ask the Court to intervene and order a complete stay of proceedings. [ 17 ] I will state it clearly at the outset. This final request cannot be granted. The refusal to order a stay of proceedings on the charges of murder and conspiracy to commit murder is an interlocutory decision that cannot be appealed, and indeed, the respondents have not done so.

They may, however, raise the complaints that were not accepted by the trial judge in support of their argument that he was right to stay at least those proceedings that he did. THE TRIAL JUDGMENT

[18] In the eyes of the trial judge, a single trial is not possible. This conclusion is indisputable. The period covered by the charges, thenumber of accused, the variety of charges faced by some of the accused, the complexity of the charges and the magnitude of theevidence, which has never before been seen – all of these factors leave no doubt on this issue. [19] Moreover, the judge found that counts 2 to 7 could not legally be incorporated into the indictment because they do not arise fromthe same transaction as the murder charges (s. 589 Cr.

C.), even though they could constitute a kind of motive for the murders. Since theappellant does not contest this finding, it can be stated that the direct indictment was improperly filed with respect to counts 2 to 7. Thus,it is not the judge's decision that deprived the prosecution of the right to proceed on all the counts at the same time; rather, the law wasthe cause, as the prosecution admits.

That being the case, the judge had to decide which path to take: whether, quite simply, theindictment should be quashed, or whether counts 2 to 7 should be severed. [20] The judge refused to quash the indictment, being of the view that severing the counts would suffice. He added that, even ifsection 589 Cr. C. had not been violated, the interests of justice would have compelled him to order the severance of the counts pursuantto subsection 591(3) Cr.

C., for the following reasons: [translation] The possibility of managing the quantity of evidence admitted in order to prove the motive and, accordingly, manage the prejudicecaused a petitioner, as opposed to the probative force of that evidence.

If counts 2 to 7 were present, the Court could not intervene to limitthe motive-conspiracy evidence The possibility of considerably reducing the length of the trials for, first, the counts of murder, then for counts 2 to 7 inclusively. [21] Thus, according to the judge, the trials for murder and conspiracy to commit murder had to be separate from the trials for theoffences in counts 2 to 7. He was certainly entitled to rely on R. v.

Candir[7] to raise possibility of reducing the duration of the trial bysevering the counts, even though the motive remained relevant: 59 A party who meets the requirements of a listed or the principled exception to the hearsay rule removes its exclusionary features as abarrier to admissibility. But ascension over one barrier to admissibility does not preordain reception. A trial judge has a residualdiscretion to exclude otherwise admissible evidence, including admissible hearsay, where its impact on the trial process (cost) exceeds itsvalue to the correct disposal of the litigation at hand (benefit).

The prejudicial effect of the evidence may overwhelm its probative value.Introduction of the evidence may involve a significant expenditure in time, not commensurate with the value of the evidence. Theevidence may mislead because its effect on a trier of fact, especially a jury, may be disproportionate to its reliability: R. v. Mohan, (SCC), [1994] 2 S.C.R. 9, at pp. 20-21; R. v. Khelawon, 2006 SCC 57 , [2006] 2 S.C.R. 787, at para. 3; R. v.

Humaid(2006), (ON CA), 81 O.R. (3d) 456 (C.A.), at para. 57. [22] Indeed, sometimes the prosecution itself has an interest in limiting the number of counts, as Doherty, J.A. reminds us in R. v. Rowe, 2011 ONCA 753: 58 Crown counsel in the exercise of his or her responsibility to further the due administration of justice should consider whethermultiple count indictments can be trimmed before the case goes to the jury without compromising the case the Crown seeks to havedetermined by the jury.

The possibility of not requiring verdicts on all counts in a multiple count indictment should be canvassed withcounsel as part of the pre-charge conference. It is self-evident that the fewer the charges a jury must consider, the less likely it is thatconfusion will intrude upon the jury's deliberation, or that the trial judge will fall into legal error. Jury confusion can lead to a hung juryand legal error can necessitate a new trial. Neither result serves the Crown's interest in the due administration of justice.

A properlytrimmed indictment serves everyone's interests in the criminal process. [23] In addition to severing the counts, the judge found that the accused should also be separated. Otherwise, the challenge would beinsurmountable. Again, this conclusion is indisputable. Is it really reasonable to consider a trial involving over one hundred accused, inan adversarial legal system such as our own, especially since it would be a jury trial and there is no courtroom big enough toaccommodate it? Obviously not.

The question therefore became: how and on what basis should the trials be separated? [24] In the view of the prosecution, it alone has the power to determine the order of the trials. Furthermore, it argued that in some ofthe cases it wanted to wait for the accused to declare themselves ready to proceed and then begin with them, in smaller groups, on thecharges of conspiracy to commit murder, a few charges of murder, and one count of criminal organization offence. The judge rejectedthis approach. [25] First, he identified 31 accused (two of whom were absent) who were not charged with murder.

Dubbing them the [translation]"group of 31", he decided, for reasons that will be outlined below, to deal with them as a group. He divided up the other accusedaccording to their “chapter”, or in other words, on the basis of the provincial branches of the organization of which they were members.Thus, five trials were scheduled for the charges of conspiracy to commit murder and murder, divided according to the five chapters –Sherbrooke, Quebec City, South, Trois-Rivières, and Montreal – with a group of 15 to 35 accused in each trial.

Five other trials werescheduled for the same accused on counts 2 to 7, along with a sixth for the group of 31. [26] In short, eleven trials, all of them long and complex. On this subject, the trial judge, whose experience in this field is undeniable,notes that, pursuant to the prosecution's theory that, generally speaking, all of the criminal activities are admissible against all of theaccused, he assessed the duration to be two years each, regardless of the number of accused. Nothing indicates that his assessment wasexcessive.

In fact, subsequent events have confirmed it, as we shall see below. [27] He identified the following problem: in Quebec, only two courtrooms have the capacity to accommodate a trial for 30 or soaccused. The appellant concedes this fact. These two courtrooms are at the Centre judiciaire Gouin. The government has no concreteplans to build others. The judge was therefore obliged to plan for six rounds of two trials each. He will be assisted by a colleague, sincethe two trials in each round will be held simultaneously. The

schedule he established is as follows:

• Trials 1 and 2: Conspiracy and murders, Sherbrooke and Quebec City chapters, June of 2011 to June of 2013. • Trials 3 and 4: Conspiracy and murders, South and Trois-Rivières chapters, June of 2013 to June of 2015. • Trial 5: Conspiracy to commit murder and murders, Montreal chapter, and trial 6 (Group of 31), June of 2015 to June of 2017; • Trials 7 and 8: Drug and criminal organization offences, Sherbrooke and Quebec City chapters, June of 2017 to June of 2019. • Trials 9 and 10.

Drug and criminal organization offences, South and Trois-Rivières chapters, June of 2019 to June of 2021. • Trial 11: Drug and criminal organization offences, Montreal chapter, June of 2021 to June of 2023. [ 28 ] These delays are dizzying.

Unless we question the assessment and planning – something that the appellant would like us to do – there is no doubt that some of these delays are clearly unreasonable. [ 29 ] It should be noted that it was not the delays as they existed at the time of the judgment but rather the anticipated delays that formed the basis of the judge's decision to stay proceedings on counts 2 and 7. He wrote: [ translation ] [134] The Court is of the opinion that the current delays are not unreasonable.

Considering the scope of the evidence, the seriousness and number of charges, and the number of accused, the process that has been under way for two years raises no real doubt as to its reasonableness. [135] What about the anticipated delays?

Firstly, the Supreme Court has recognized that it is possible to order a remedy in anticipation of a future or perceived violation. [8] A petitioner’s burden in such a case was succinctly described by the Quebec Court of Appeal: [157] It is not contested that, in matters of constitutional law, it is up to the person who alleges he or she is the victim of the violation of a right to demonstrate the existence of interference, on a balance of probabilities.

However, when dealing with an apprehended violation, the petitioner must demonstrate the existence of a quite serious risk, or a strong likelihood or a high degree of probability. [9] [ 136] For this question to be analysed, the chronological order of the trials must first be established. The severing of the D.I. [10] created 11 groups that must each be tried. What group will be designated to be tried first? Last?

It is established that two trials will be held simultaneously at the Centre judiciaire Gouin, although the start of the second trial may be delayed to ensure there is no conflict in the presentation of witnesses. [ 30 ] Following a detailed analysis of the situation, the trial judge accepted the

schedule described above. Aware that his assessment could not be mathematically precise, he nonetheless determined that the accused in trials 6 (the group of 31) and onward had [ translation ] "established a high probability, if not a certainty, that their trial cannot take place within a reasonable period of time". In other words, with respect to the drug trafficking and criminal organization offence charges, the delay exceeding six years is unreasonable.

However, taking into account the importance of the charges of murder and the complexity of the proceedings and the evidence, this delay is justified for counts 1 (conspiracy to commit murder) and 8 to 29 (murder), which will be the issues of the fifth trial. On this subject, he wrote: [ translation ] [153 The Court considered the following factors. Firstly, if the petitioners who are part of groups 1 to 5 and 7 to 11 must undergo two trials, that would be due to the prosecutor’s choice and a statutory constraint. The petitioners did not create that situation by requesting the severance of the counts.

The Court considered that, under

section 589 of the Criminal Code , a petitioner could agree to be judged on all the counts in a trial. That possibility is more theoretical than realistic in this case. Why would a petitioner facing charges of first degree murder adopt a position that would allow evidence of poor character spread over two years before the murders began and for seven years after to be admitted at the trial? [155] The Court also analyzed the nature of the charges. Although all the charges are important, it is especially necessary to the public interest for the counts of conspiracy to murder and first degree murder to be judged.

That is why the Court is not prepared today to conclude that a delay of up to six years after the arrests before beginning the trial of group 5 is unreasonable, considering the criminality alleged and its context. [156] The Court’s opinion is not the same as regards the group of 31 forming group 6. Although important, the criminality and the anticipated sentences for the members of this group cannot be compared with those of the members of groups 1 to 5. ... [157] The Court also considered the prejudice sustained by the petitioners. Like all accused, they are presumed innocent.

Given the nature of the charges, most of them will be detained preventively for the duration of the proceedings. Those who are released on bail will be subject to strict release conditions. [158] In closing, if the Court had not acquired the certainty that the delays for certain groups would become unreasonable, it would not have decided to intervene. In this case, when all the elements are examined, the Court is of the opinion that its decision was inevitable. [ 31 ] The judge therefore ordered a stay of proceedings on counts 2 to 7. What were the consequences of this decision?

On the one hand, even though the drug and criminal organization offence charges have been stayed, the respondents who are also charged with conspiracy to commit murder and murder were not released. The murder and conspiracy charges remain, and these accused will therefore stand trial. On the other hand, the group of 31 was released because there were no other charges against them. [ 32 ] Indeed, the trial judge also analyzed the respondents' other arguments and rejected them.

[ 33 ] He summarized the abuse of process argument as follows: [ translation ] [51] The grievance that stands out from all the others is an allegation that the respondent failed in its duty to be objective in dealing with the petitioners. It was motivated by tunnel vision or a preconceived idea borrowed from the police forces. It adopted the case theory even before examining the evidentiary elements and each petitioner’s individual situation. It also adopted the motivation of the police, i.e. the elimination of the H.A. from the territory of the province of Québec.

In doing so, the respondent abdicated its duty to see that all those charged were treated fairly. [ 34 ] His assessment of the evidence led him to the following conclusion: [ translation ] [66] After studying the evidence, the Court concludes that the petitioners did not prove, on a balance of probabilities, that the respondent either had tunnel vision or failed in its duty to be objective.

Let us look at the arguments advanced by the petitioners. [68] The petitioners failed in their attempt to show that the prosecutors went beyond merely providing legal opinions to the police and actually conducted investigations. The Court stresses at this point that the petitioners’ attorneys repeated many times during the hearing of the motion that they did not doubt the good faith of the Director’s prosecutors.

There is no evidence to support the inference that the respondent’s prosecutors abandoned their traditional role and took on that of investigator. [ 35 ] Regarding the prosecution's theory of the case and the "tunnel vision" the respondents reproach it for, he found: [ translation ] [78] The case theory adopted by the respondent led to the laying of charges against a large number of individuals. The impact of that theory on the notion of individual criminal responsibility is enormous.

At the hearing and in prior judgments, I expressed reservations about that aspect of the theory, which seemed to advocate criminal responsibility without evidence of a specific act or omission on the part of a petitioner for the purpose of abetting or encouraging a given murder. If the respondent erred in its

interpretation of the law, the bulk of the petitioners are unjustly accused of first degree murder. [79] That said, in the Court’s opinion, the situation does not show a loss of objectivity or tunnel vision. The situation simply reflects an

interpretation of the law that may prove erroneous. A petitioner will have the opportunity to submit that issue to the Court if a motion for non-suit is filed. Having chosen not to challenge the respondent’s good faith, it is impossible to arrive at the conclusion, on a balance of probabilities, that it adopted its theory for improper reasons. Even admitting that the respondent is wrong in its legal

interpretation, which the Court does not decide, that does not mean the prosecution is abusive, since the trial provides the petitioners with a mechanism for testing the theory, namely, the motion for non-suit, even before it is submitted to the trier of fact. [ 36 ] With regard to the argument that the respondents are unable to mount a defence because of the size of the file and an inadequate disclosure of evidence, the judge acknowledged some shortcomings but nevertheless found that they were insufficient to prove that the prosecution was abusive. In his opinion, the measures taken by the court were sufficient.

As for the quantitative aspect of the evidence, he pointed out that prudence was required and that one must guard against being influenced merely by the allegations of the accused. The objective criteria, which take into account the nature of the investigation, must be discerned. Indeed, [ translation ] "[w]hoever speaks of criminal organizations also speaks of large-scale investigations, of prosecutions whose duration exceeds the norm and of a substantial quantity of evidence". The severance of the counts will reduce the time needed to prepare the trials and their duration.

He conceded that the size of the file presents problems with respect to counts 2 to 7, but the petitioners had not yet established a constitutional violation other than the unreasonable delays. [ 37 ] With regard to the difficulties relating to trial management, the judge admitted that the accused are justified in invoking them, but added that [ translation ] "to intervene at this point, as the petitioners wish, would be admitting that our system of justice is not designed to respond to the criminality alleged". [ 38 ] The judge does not accept the argument that the indictment was overloaded and notes that, in any event, there is nothing to prevent the judge presiding over the trial from not proceeding on some of the counts. [ 39 ] As for the rest, he wrote: [ translation ] Some other reasons were advanced by the petitioners in support of their request for a stay of proceedings.

None of them, considered individually or collectively, establishes that the proceedings are abusive. More particularly, the ethical concerns raised by the petitioners’ attorneys do not support a determination of abusive conduct by the respondent.

The severing of the D.I. reduces the need to examine all the evidence disclosed when each trial is prepared. [11] [ 40 ] To conclude his judgment, he made the following finding: [ translation ] [164] In a document filed during arguments (IP-2), the respondent wrote the following in evoking the possibility of a stay of proceedings against the group of 31: To stay the proceedings against those accused is tantamount to acknowledging the incapacity of the judicial system to act in regard to structured criminal organizations.

[165] The respondent is wrong. [166] Despite the stay of proceedings involving the group of 31, the remedies granted by the Court provide that 124 members or associates of the H.A. will stand trial on 1 count of conspiracy to murder and 22 counts of first degree murder. How, in such a case, can it be claimed that the judicial system is revealing its incapacity to act in regard to structured criminal organizations? [167] Rather, the stays of proceedings granted testify to a coherent analysis of the scope of the case, statutory requirements and the available courtrooms.

The Court was forced to conduct that analysis in the absence of any coherent position provided by the Director. [12] If the Director wanted to prosecute all the petitioners on all the counts within a reasonable period of time, four courtrooms similar to those available at the Centre judiciaire Gouin and the addition of an equal number of judges to the Superior Court would have been required. [168] The stays of proceedings granted underscore the fact that it is not enough to adopt an investigative and prosecution plan focused solely on the gathering of evidence.

If the Director does not conduct an analysis of the justice system’s capacity to deal with the number of accused anticipated, he risks obtaining the same results as today. It is up to the police forces and the Director to plan the investigations and prosecutions according to the existing capacity of the judicial system. [Emphasis added.] [ 41 ] I will now consider the parties’ submissions.

SUBMISSIONS OF THE PARTIES [ 42 ] The appellant, noting that the trial judge has rendered a very large number of decisions since he began presiding over these proceedings, emphasized that he has committed only one error: ordering a stay of proceedings on counts 2 to 7. It raises three grounds of appeal, which can be summarized as follows: • The trial judge erred in law by finding that the anticipated delays – which he himself created after estimating the duration of the trial – were unreasonable. • He erred in law by failing to perform the analysis prescribed by the Supreme Court in R. v.

Morin , [13] and more particularly, by making the order in the absence of any evidence of prejudice. • He erred in law by choosing the most draconian remedy available without considering any alternatives that could have avoided the anticipated violations. [ 43 ] Essentially, the appellant argues that it was not up to the trial judge to decide the order of the trials, and that even if he had jurisdiction to do so, he erred, inter alia , by deciding that the trial of the group of 31 would take place in 2015 and not 2011. It maintains that it had suggested to the judge that this trial should be first.

In short, it argues, the judge himself caused the delays, which he then characterized as unreasonable. The appellant argues that if the delay before trial number 5 (conspiracy to commit murder and murder, beginning in June of 2015) was not unreasonable, why did the judge not simply

schedule the trial for the group of 31 to begin in June of 2011, and postpone trial number 4 for murder to June of 2015? This, the appellant maintains, would have been the way to avoid artificially creating an unreasonable delay.

It uses the expression [ translation ] "empty room syndrome" to characterize the situation in June of 2015, when a single trial for conspiracy to commit murder and murder will be held while, as a result of the stay of proceedings, the group of 31 will have been released. [ 44 ] Regarding the prejudice required for an order to stay proceedings to be made on the grounds of unreasonable delay, the appellant believes that there is no evidence of such prejudice and that the judge made the order solely because of the delay and on the basis of collective prejudice, when it was a matter of individual rights.

Furthermore, it argues, the accused who are also charged with conspiracy to commit murder and murder suffer no prejudice since they would be detained in any event, pending trial on those charges. [ 45 ] Obviously, the respondents support the judgment, adding that, even if the appellant is right, the proceedings are abusive to the point where they would be unable to mount a defence and the only solution that could seriously be considered was a stay of proceedings. ANALYSIS OF THE APPELLANT'S ARGUMENTS [ 46 ] Everyone can agree: megatrials are sometimes inevitable.

While they may cause their share of inconvenience and headaches for the courts and the parties, they should not be condemned across the board. Indeed, Moldaver J.A., as he then was, said as much for the Court of Appeal for Ontario, when he stated that his harsh criticism of megatrials did not target those concerned with high-level organized crime. [14] In short, the courts must remain vigilant. On the one hand, they should ensure that the prosecution does not use megatrials ill-advisedly to create a smokescreen or that accused are not permitted to use manoeuvres with the sole purpose of derailing the process.

On the other, they must ensure that everyone's rights – those of both the prosecution and the defence – are respected, given that there is no such thing as an ideal trial. They must also, however, do everything possible to ensure that organized crime is brought to justice, and to do so, they must not hesitate to use their case management powers [15] to make the necessary orders to ensure orderly proceedings. In this context, the assistance of counsel for both parties, to identify the appropriate solutions in particular, is surely not to be dismissed.

On the contrary, as Hill J. has remarked, [16] it should be encouraged: The success of a judicial pre-trial depends in large measure on the cooperative attitude, preparation and commitment of the parties and the court to tackling all relevant issues. [ 47 ] Moreover, it is useful to reiterate the appellant's position: for the last 20 years, all of the Hells Angels in Quebec have taken

part in drug trafficking and committed indictable offences, some as serious as murder, with the aim of expanding their sales territory. The

chapters are parts of a single organization. Money is the ultimate goal, the drug trade is used to that end, and the organization has had to fight with other organizations – and sometimes commit murder – to preserve or expand its territory. Drug trafficking as evidence of criminal activity should therefore be admissible against all of them to demonstrate both motive for and participation in the conspiracy to commit murder and the murders. [ 48 ] This theory is sufficient on its own to illustrate the scope of the task facing the courts, the parties, and all of the actors in the justice system.

This is not a reproach; it is merely an observation, in light of which action is required. And to act, the prosecution must ensure that it is prepared to proceed within a reasonable time and that it has a plan. It must be admitted that, in this case, the need to proceed with the arrests in April of 2009 was not necessarily urgent. But as soon as it was done, the prosecution needed to have a plan for the upcoming stages and a proposal to present to the courts.

Indeed, this is what the judge said: [ translation ] [60] The authorities submitted by the parties that discuss the phenomenon of mega-trials concur regarding two principles. The Director has greater responsibility when considering a mega-trial. An ideal society would have the resources required to investigate each crime, apprehend each offender and bring that person to justice to undergo a fair trial. We do not live in an ideal society.

Those responsible for the administration of criminal justice must make choices: what to investigate, who to prosecute and for what crimes. [ 61] The decisions must be made after a realistic assessment of the capacity of the legal system to manage the cases. A simple example: in the Montréal Judicial District and its environs, there are two courtrooms that have a capacity for a great many accused if there are security issues. Not three or four; only two. In planning the prosecutions, the Director must consider this simple fact.

If the Director commits the administration of justice to a mega-trial requiring three or four courtrooms, as described, to complete the trials within a reasonable period of time, there is a problem. [ 49 ] The trial judge did not say that the decision to proceed with the arrests was premature. On the contrary, he stated that roughly 75% of the evidence was disclosed at the same time as the arrests.

The subsequent problems with disclosure were not, in his view, sufficient to sustain a finding that the respondents' rights had been violated. [ 50 ] The problem, rather, lies with the determination of the order of the trials, especially since it has always been clear that a single trial would be impossible. The prosecution needed to have considered this issue, but the judge saw nothing more than improvisation: [ translation ] [137] While the motion was being heard, the respondent changed its position regarding the petitioners who will be tried first. In the testimony of Mtre.

Chartrand, he was in favour of three simultaneous trials. The first two would each involve roughly 20 petitioners, who declared themselves ready to proceed. The trials would proceed on the count of conspiracy to murder, two or three murders that the respondent would target and the first count of the criminal organization offence. The third trial would involve the group of 31. That position was based on Mtre. Chartrand’s belief that a third courtroom would soon be available at the Montreal courthouse to accommodate such a large number of accused in a secure environment. When Mtre.

Chartrand was informed that the third courtroom would not be available in the foreseeable future, since a call for tenders had not yet been issued, he changed his position. There would be two trials, focusing on two or three counts of murder, conspiracy to murder and one count of the criminal organization offence. [138] The respondent changed its position during arguments. It desires to hold an initial trial involving 20 or so petitioners, who declare themselves ready. The trial will cover two or three counts of murder, one count of conspiracy to murder and the first count of the criminal organization offence.

The second trial will be that of the group of 31. [ 51 ] This vacillation on the part of the prosecution is not very reassuring. The courts cannot base their management decision on a lack of planning. [ 52 ] The judge was correct to find that he was not bound by the prosecution’s proposal and that he had jurisdiction to intervene because this decision did not fall solely within the discretionary power of the prosecution. On this subject, he cited Krieger v.

Law Society of Alberta : [17] [47] Significantly, what is common to the various elements of prosecutorial discretion is that they involve the ultimate decisions as to whether a prosecution should be brought, continued or ceased, and what the prosecution ought to be for. Put differently, prosecutorial discretion refers to decisions regarding the nature and extent of the prosecution and the Attorney General’s participation in it.

Decisions that do not go to the nature and extent of the prosecution, i.e., the decisions that govern a Crown prosecutor’s tactics or conduct before the court, do not fall within the scope of prosecutorial discretion. Rather, such decisions are governed by the inherent jurisdiction of the court to control its own processes once the Attorney General has elected to enter into that forum. [ 53 ] The Supreme Court reiterated this rule in R. v. Nixon . [18] This case does not involve a decision concerning the nature and extent of the prosecutions. The judge made no comment on this subject.

Rather, he considered the conduct of the prosecution before the court and its strategy with respect to the management and order of the trials. [ 54 ] Obviously, subject to abuse of process, the courts should not interfere with prosecutorial discretion.

This stems from the respect of the separation of powers and the rule of law. [19] However, even where prosecutorial discretion is in play, sometimes, in cases of abuse, judges must intervene to protect the rights of the other party. [ 55 ] A presiding judge has an inherent power to manage the trial, and a judge’s powers of intervention in a criminal trial are considerable. This is understandable at a time when trials lasting several months or even years are relatively common, not to mention the impact of the Charter on the complexity of the files.

A judge’s role should no longer be limited to that of a mere arbitrator allowing parties to conduct their case as they see fit. A judge must have the power to make the orders necessary to ensure an orderly trial, without

which the administration of justice risks being be thrown into disrepute. [ 56 ] The courts have recognized this power to control proceedings: [57] I think something should be said about the trial management power. It is neither necessary nor possible to exhaustively define its content or its limits.

But it at least includes the power to place reasonable limits on oral submissions, to direct that submissions be made in writing, to require an offer of proof before embarking on a lengthy voir dire , to defer rulings, to direct the manner in which a voir dire is conducted, especially whether to do so on the basis of testimony or in some other form, and exceptionally to direct the order in which evidence is called. The latter power is one that must be exercised sparingly because the trial judge does not know counsel’s brief.

However, a judge would not commit jurisdictional error in exercising that power unless the effect of the ruling was to unfairly or irreparably damage the prosecution. That did not occur here. While some other judge might not have made the order that the trial judge did in this case and might very well have seen the merit of immediately proceeding with the omnibus document motion, I am not convinced that the trial judge’s decision to do otherwise was a jurisdictional error. On my reading of the record, the ruling did not prevent the prosecutor from calling his case.

I agree with the application judge’s view (at para. 227) that deferring the documents motion did not “unfairly or irreparably” damage the position of the prosecution. [20] [ 57 ] Recent provisions enacted by Parliament confirm these powers in the context of a megatrial. [21] [ 58 ] The courts are also sometimes required to intervene to impose the order of the trials. This is what happened in R. v. Schertzer , [22] for example.

The Court of Appeal for Ontario had the following to say on the subject: [146] We accept that the courts should be hesitant to second guess or monitor the tactical or strategic decisions of Crown counsel in deciding the order in which cases are tried. But where that decision leads to an unreasonable and unnecessary delay, the courts must protect the accused. Obviously, the trial court will give careful consideration to Crown submissions as to the order in which trials should proceed.

But once the two indictments were laid before the Superior Court of Justice, that court had the power to order that Benoit’s trial proceed before the trial of the long indictment so as to protect his constitutional rights. [ 59 ] Of course, the facts differ, but the principle remains the same: A court may, on occasion, impose the order of trials, and the trial judge was free to do so, having noted, first, the failure to comply with

section 589 Cr. C ., and second, the need to sever the counts and the accused to ensure the manageable conduct of the trials where the prosecution had been unable to propose a properly thought-out schedule. [ 60 ] And that is the reason, more specifically, that the judge dismissed the prosecution's final proposal whereby the trials should begin with one for the group of 31 and another for approximately 20 accused who were ready to proceed on two or three charges of murder and one charge of conspiracy to commit murder.

He then found that the prosecution was improvising and that there was a blatant lack of preparation, analysis and anticipation with regard to case management: [ translation ] [140] The respondent’s position is rejected, for several reasons. It does not give priority to dealing with the petitioners accused of murder. Because of their objective seriousness, these counts must be dealt with first, in the Court’s opinion.

The Court notes that the same position was taken in the trial held in the wake of Opération Printemps 2001. ... [141] The Court rejects the notion that it must wait for the petitioners to declare that they are ready before it can identify those who will be tried first. A series of pre-hearing conferences that would review the respondent’s anticipated evidence would ensure that any petitioner was ready. The Court notes that, in previous cases, the position recommended by the respondent was not adopted. 20.

The reasons for this choice are numerous and I believe it is sufficient to say that, if we had to proceed immediately and solely for the accused who are ready, we would likely have to repeat the same trial several times, have the witnesses testify many times and run a high risk of irreconcilable verdicts. So it is with a concern for the sound administration of justice that I render this decision. [23] [143] Lastly, the Court gives little weight to the respondent’s opinion regarding the way to manage the D.I.

That unfortunate observation is inspired by the absence of an indication that the respondent seriously considered the impact and the management of the D.I. on the administration of justice before or after filing it. [144] The requests to file a D.I. made to the Director are silent as regards the question of management. There is no evidence that the Director asked any question whatsoever on the subject before signing the D.I. The position that the D.I. does not violate

section 589 of the Criminal Code is surprising. At the very least, a Plan B had to be contemplated if the Court did not agree with the respondent’s position on that issue. There is no trace of a Plan B. The management plan suggested by the Director’s righthand man, in his testimony, was improvised. The plan required the use of a third courtroom that, contrary to the witness’s belief, does not exist.

Lastly, there is the change in the management plan proposed during arguments that gives priority to the group of 31 to the detriment of those accused of murder, with the exception of a group of 20. [ 145] The Court has no hesitation in considering the decision to include the group of 31 − having even contemplated bringing those accused together in the D.I. − as the ultimate proof that the Director did not give attention at any time whatsoever to the impact on the administration of justice.

If he had considered the matter, which was his duty, he would have concluded not only that the group of 31 should not be included in the D.I. but that a series of smaller cases should have been opened to deal with those individuals . [Emphasis added.] [ 61 ] These are conclusions of fact, and the appellant has not demonstrated any palpable and overriding error.

[ 62 ] The judge, in order to perform his duty, had to determine the order of the trials. It was certainly not unreasonable to begin with the most serious charges. It goes without saying that a guilty verdict could easily settle the outcome of the other charges. Moreover, it seems clear to me that society wants the courts to settle the most important cases first and that they not be adjourned to hear other charges. As the judge points out, this was the solution adopted in another megatrial.

If judicial experience is an asset, this is a good example of its application. [ 63 ] The appellant notes that there will be an empty courtroom in June of 2015. Therefore, it argues, the group of 31 should stand trial first, and one of the murder trials should be postponed for two years. This would have no serious impact, since in any event the judge found that June of 2015 is not an unreasonable delay for murder charges. It seems to me that this fails to take into consideration those who will be required to wait two more years to stand trial for murder.

Requiring accused to wait an additional twenty-four months before finding out whether they will receive a sentence of life imprisonment surely cannot be considered a neutral factor. The anxiety this state would cause must be taken into account. But there is more. The empty room issue arises only if the group of 31 is required to stand trial at the same time. The judge does not believe that it does, however, and I find ample justification for his opinion, both in law and in fact.

I will explain why. [ 64 ] The position of the appellant, who wishes to proceed against the group of 31 as a single group, does not take into consideration the findings of the judge, who believes that the group of 31 would require more than one trial. In his opinion, there should be a number of smaller trials instead.

Let us consider what he said: [ translation ] [145] The Court has no hesitation in considering the decision to include the group of 31 − having even contemplated bringing those accused together in the D.I. – as the ultimate proof that the Director did not give attention at any time whatsoever to the impact on the administration of justice.

If he had considered the matter, which was his duty, he would have concluded not only that the group of 31 should not be included in the D.I. but that a series of smaller cases should have been opened to deal with those individuals. [146] Here are a few characteristics of the group of 31 that were noted in the bail hearings held for some of them. Many of them were alleged to be associated with the H.A., but not to be members. The appearance of a number of them began in 2007-2008, only two years before the arrests. Several of them were implicated in alleged criminal activities that could be described as sporadic.

The Court refers to the petitioners, besides Mr. Emery, who were implicated in the Jacobyproject. That project concerned the sale of quantities of cocaine in New Brunswick. Rather than charging two, three or four petitioners in New Brunswick for trafficking and a criminal organization offence, it was decided to bring them to Montréal and throw them into the pot so as to attain the original figure of 156 accused. The same observations could be made regarding the petitioners who were investigated at the time of the Gouape which investigated narcotics trafficking in the Saguenay region.

Rather than charging the H.A. associates there in a small, manageable trial, it was decided to transfer all those people to Montréal and add them to the D.I [ 65 ] Ultimately, some of the accused in the group of 31 are charged with crimes that took place over one or two years, while others face trial for offences committed over a period of nearly 20 years. Unlike some, others participated only occasionally. Some allegedly committed the crimes in Quebec, while others were in New Brunswick. Some committed the alleged acts in Montreal, others in Saguenay.

Again, these observations have nothing to do with the exercise of prosecutorial discretion, as described in Krieger and Nixon . The judge's reasoning in no way concerns the decision to prosecute or the scope of the prosecution. [ 66 ] Consequently, if the judge had decided to begin with the group of 31, a minimum of efficiency would have required a surgical separation of the accused (paragraph 591(3)(

b) Cr. C .) so that several small trials could be held in several different locations (paragraph 599(1)(

a) Cr. C .), whereas the prosecution, for its part, would have proceeded with a group trial. In the judge’s opinion, if the prosecution had done its homework, it would have severed the charges itself and some of the trials might even be over already.

The judge could not do so without the help of the prosecution, especially since it meant that, during the months of management conferences and discussions, a hearing room would have remained empty – even though this is something that the appellant seeks to avoid – while the murder charges in trial number 2 would have been pushed back for two years. [ 67 ] In short, the judge might have been able to consider other solutions, such as holding smaller trials in different judicial districts.

This would have required the collaboration of the prosecution, however; otherwise, the judge would have become a manager for the prosecution, when in fact he is solely the case manager. If the prosecution had pursued this course, the judge could have followed through. On the contrary, however, the prosecution's decision to proceed against the 31 accused as a group left him no choice. To identify the accused and, in particular, the judicial district of the trial and the period contemplated in the charges against the wishes of the prosecution was not his task to perform in the circumstances.

Moreover, this is not how the appellant pleaded its case before us, as it continues to seek a joint trial. [ 68 ] After all, including the group of 31 in the first wave of trials would have meant that one of the first two trials (the one for this group) would not have begun for several months, while a judge tried to settle all the management issues. The judge, however, wanted the trials to begin, and to make this happen, he had to give priority to the murder charges. He cannot be faulted for having postponed a trial that clearly was not ready.

Moreover, it was also the first choice of one of the prosecutors, who testified that if he had the choice he would proceed on the murder charges first. [ 69 ] This was not a non-judicial exercise of discretion. After consulting the parties, the judge correctly found that the trial for the group of 31 could not be held collectively, despite the claims of the prosecution. Faced with the firm and opposing position of the prosecution, his only choice was to

schedule the trial for the group of 31 after the murder trials; otherwise, he would be creating new delays himself. [ 70 ] As for prejudice, it is inaccurate to say that the judge did not discuss it. This is what he said: [ translation ] [ 155] The Court also analyzed the nature of the charges. Although all the charges are important, it is especially necessary to the public

interest for the counts of conspiracy to murder and first degree murder to be judged. That is why the Court is not prepared today to conclude that a delay of up to six years after the arrests before beginning the trial of group 5 is unreasonable, considering the criminality alleged and its context. [156] The Court’s opinion is not the same as regards the group of 31 forming group 6. Although important, the criminality and the anticipated sentences for the members of this group cannot be compared with those of the members of groups 1 to 5.

The Court reiterates its comments in paragraph 146 as regards this group. [157] The Court also considered the prejudice sustained by the petitioners. Like all accused, they are presumed innocent. Given the nature of the charges, most of them will be detained preventively for the duration of the proceedings.

Those who are released on bail will be subject to strict release conditions. [ 158] In closing, if the Court had not acquired the certainty that the delays for certain groups would become unreasonable, it would not have decided to intervene In this case, when all the elements are examined, the Court is of the opinion that its decision was inevitable. [ 71 ] The appellant argues that the judge transformed the individual right to a trial within a reasonable time to a collective right, particularly with respect to prejudice. [ 72 ] The judge was certain that trials 5 and 6 could not begin before June of 2015.

His view was that the delay for counts 2 to 7 in trial 6 was unreasonable. Can a serious argument be made that it cannot be inferred that these long delays would cause prejudice to all of the accused? I do not believe so. In my view, there was no need to require evidence for each of the accused before finding that there was prejudice. As one of the attorneys for the respondents put it, is it possible to charge a person in Canada with drug trafficking and a criminal organization offence and then

schedule that person's trial for six years hence, until which time the accused is detained or subject to conditional release? In my view, this is one of the cases in which prejudice may be established on the basis of the mere length of the delay. Additional evidence of prejudice is not required in the event of such a long delay. The presumption of prejudice is so strong that it is sufficient. [ 73 ] As the Supreme Court stated in R. v. Smith : [24] Having found that the delay is substantially longer than can be justified on any acceptable basis, it would be difficult indeed to conclude that the appellant's s. 11(

b) rights have not been violated because the appellant has suffered no prejudice. In this particular context, the inference of prejudice is so strong that it would be difficult to disagree with the view of Lamer J. in Mills and Rahey that it is virtually irrebuttable. [ 74 ] A reading of R. v. Godin [25] reveals the difficulty of assessing the prejudice, the importance that must be given to all circumstances, as well as the need to reconcile the interests of the accused with those of society: 18 The legal framework for the appeal was set out by the Court in Morin , at pp. 786-89.

Whether delay has been unreasonable is assessed by looking at the length of the delay, less any periods that have been waived by the defence, and then by taking into account the reasons for the delay, the prejudice to the accused, and the interests that s. 11(

b) seeks to protect. This often and inevitably leads to minute examination of particular time periods and a host of factual questions concerning why certain delays occurred. It is important, however, not to lose sight of the forest for the trees while engaging in this detailed analysis. [ 75 ] In this case, the situation as a whole leaves no doubt as to the existence of prejudice. [ 76 ] Admittedly, this argument is more applicable to the group of 31 than it is for the other accused in trials 7 to 11, but that does not mean that the other accused would be spared from prejudice.

For one, the trials would begin in June of 2017, June of 2019, or even June of 2021 – as long as 12 years after the arrest! What would we say of an accused who, standing trial for murder, knows that, even if he is acquitted, this will not be the end of proceedings as he will still be required to stand trial on drug trafficking and criminal organization offence charges several years later.

This exceptional case did not require additional evidence to conclude that there would be prejudice, even for those accused who also face murder charges. [ 77 ] Moreover, when the judge wrote [ translation ] "if the Court had not acquired the certainty that the delays for certain groups would become unreasonable, it would not have decided to intervene", he indicated not only that he based his decision on the anticipated delays, but – and even more importantly – that he was persuaded that these delays would materialize.

This statement is important, and I will return to it. [ 78 ] The appellant is of the view that a Court cannot order a stay of proceedings on the basis of anticipated delays. I do not share this opinion . [ 79 ] In support of its argument, it cites the following excerpt from this Court's judgment in R. v. Coulombe : [26] [ translation ] [4] In truth, the the judge's only reason concerned the anticipation of a delay that could, hypothetically, be unreasonable. This cannot form the basis of a decision ordering a stay of proceedings under paragraph 11(

b) of the Canadian Charter of Rights . [ 80 ] That judgment, however, does not support the argument. First, the delays in Coulombe are nothing like those at issue in this appeal. Second, that judgment says that the delays in Coulombe could hypothetically be unreasonable, which was insufficient. That is not the case here, on the contrary. This is not a situation in which the delays could hypothetically be unreasonable; the delays are unreasonable.

In short, anticipated delays that the Court finds are sure to materialize can sometimes be characterized as unreasonable. [ 81 ] In this case, contrary to the situation of Operation Printemps 2001, no additional hearing room was built or planned in an effort to respond adequately to the influx caused by these arrests. The government has taken no measures to make it possible to hold trials under

reasonable conditions. Having made this observation, it was open to the judge to find that, because of the complexity of the file, thedelays he had identified could not be shorter. Having made such a finding, should he have waited longer before staying proceedings?Should he have allowed the prejudice to materialize before intervening, even though two years had already passed since the arrests? I donot believe so.

Indeed, the manner in which things have since unfolded tends to support his decision: it is difficult to argue that hisassessment was exaggerated when today, four years after the arrests, no witness has yet been heard. In fact, it is reasonable to believethat the delays might be even longer than what the judge predicted. [82] In R. v. Brassard,[27] it is written that a court may take into account an "inevitable anticipatory delay". This is certainlyexceptional, but it cannot be characterized as erroneous. Everything depends on the court's degree of certainty.

In this case, I note that thetrial judge wrote that he had the [translation] "certainty" that the delays would become unreasonable. In other words, the judge wascertain that the delays would materialize and that they would cause prejudice to the accused. In my view, this is sufficient. [83] Furthermore, in Phillips v. Nova Scotia (Commission of Inquiry into the Westray Mine Tragedy), (SCC), [1995]2 S.C.R. 97, Cory J., in concurring reasons, discusses the notion of an apprehended Charter violation. He writes: The onus of proving a Charter breach lies upon the individual who claims it.

It is true that relief may be granted for a prospectiveCharter violation. (See Operation Dismantle Inc., supra.) However, relief will only be granted in circumstances where the claimant isable to prove that there is a sufficiently serious risk that the alleged violation will in fact occur. In Operation Dismantle Inc., supra,where the anticipated violation was of s. 7, Dickson C.J. adopted (at p. 458) the requirement that the individual seeking to restraingovernment action must demonstrate a "high degree of probability" that the Charter infringement will occur before the court will grantrelief. ...

Frankly, I cannot see much difference between the test of "high degree of probability" and that of "a real and substantial risk". Theessence of both tests is that before a court will restrain government action, it must be satisfied that there is a very real likelihood that inthe absence of that relief an individual's Charter rights will be prejudiced. ... [Emphasis added.] [84] This does not mean that the reasoning applies to all Charter rights.

I am of the opinion, however, that the notion that a strongprobability of a violation and prejudice must be established before relief is granted can apply to the protection of the right to a trial withina reasonable time, even when the delays are anticipated. And this is what the trial judge did when he stated that he was certain that thedelays that he anticipated would materialize. [85] In United States v.

Kwok, 2001 SCC 18 , [2001] 1 S.C.R. 532, Arbour J. made a similar statement: 66 Remedial action by the courts for future violations is not precluded as a matter of law despite the use of a past tense in the languageof s. 24(1). I In Operation Dismantle Inc. v. The Queen, (SCC), [1985] 1 S.C.R. 441, this Court suggested that aremedy under s. 24(1) could be granted not only in the case of an actual interference with Charter rights but also to prevent probablefuture harms when an applicant can establish an apprehension of such interference at a future trial. R. v.

Vermette, (SCC), [1988] 1 S.C.R. 985, confirmed, at p. 992, that Charter remedies may be available in cases where an applicant can establish thethreat of a future violation. [86] In short, violations, even potential ones, may be the basis for a remedy under the Charter: New Brunswick v. G.(J.), (SCC), [1999] 3 S.C.R. 46; R v. Harrer, [1994] 3 S.C.R. 562; A.G. Quebec v. R., (QC CA), [2003] R.J.Q. 2027(C.A.). [87] This is my understanding of R. v. Smith, supra, in which Sopinka J. writes that an anticipated paragraph 11(

b) Charter motion canjustify relief in some circumstances: 16 There are two jurisdictional issues raised on the facts of this case, both having to do with the exercise of the motions judge'sdiscretion to determine the appellant's s. 11(

b) application. First, the appellant initiated these proceedings by way of an application oforiginating notice of motion several months before the scheduled commencement of the preliminary inquiry. The appellant's s. 11(b)application is, therefore, anticipatory in respect of the period of time between the date of his application and the scheduledcommencement of the preliminary inquiry.

However, in the circumstances of this case, since the date for the preliminary inquiry wasfixed and could not (at the behest of the accused) be moved up, the motions judge properly considered the appellant's s. 11 (b)application on the basis that the time had already elapsed. [88] Furthermore, I cannot conclude, as my colleague Levesque, J.A. has done, that the trial judge decided the issue without evengiving the parties the opportunity to be heard and that he exceeded his jurisdiction by causing irreparable harm to the prosecutionwithout hearing it beforehand. [89] The application for a stay of proceedings and to quash the indictment describes the delays as at May 6, 2010, and in itsamendment on October 28, 2010, states that these dalays are anticipated.

The allegation is drafted as follows. [translation] 325. - What is also particular is that, if a trial is held, it will last over two years and, if the accused are separated or the counts aresevered, most of the applicants will have spent over 10 years in preventive detention by the time legal proceedings end. The SupremeCourt has recognized that it is possible to order a remedy in anticipation of a future or perceived violation.

[90] During submissions at trial, the appellant went into great detail regarding the issue of the delays, whether already elapsed oranticipated. In appeal, it maintains that the judge was bound by its position on the order of the trial, that anticipated delays do not openthe door to the intervention of the Court, and that the judge did not follow the test in Morin as he should have done.

In short, and this isdecisive, the appellant does not raise in appeal any breach of the audi alteram partem rule. [91] Moreover, the judge's decision does not deprive the prosecution of the right to adduce evidence of drug trafficking and criminalorganization offences if this evidence is relevant to the charges of conspiracy and murder, particularly with respect to establishingmotive.

Indeed, as I stated before, the judge himself specified that this evidence would nevertheless be admissible, although he addedthat he might limit its scope, depending on the circumstances and, since the rule still applies, in consideration of its probative value, theprejudice caused to the accused, and its impact on the trial: R. v. Candir, supra. [92] In conclusion, the appellant has not persuaded me that it was not open to the trial judge to intervene as he did, based on the veryspecific circumstances of this case.

SUBMISSIONS OF THE RESPONDENTS [93] Given my prior conclusion, it is not really necessary to analyze the respondents' arguments. I believe, however, that it is worthproviding a brief overview: [94] The trial judge has an exceptional knowledge of this file. He has rendered a multitude of decisions and is fully aware of thepitfalls that may lie in wait. [95] At the stage he found himself, the judge was right to conclude that the situation did not resemble abuse of process, or in otherwords, that it was one of the most serious or clearest of cases necessitating a complete stay of proceedings.

None of the respondents'arguments, which I have summarized above, support the conclusion sought in any way. From the outset, the judge took the measuresrequired to ensure that the rights of all were respected. This task was onerous but not impossible. There is nothing indicating – at least sofar – that his efforts will not bear fruit. There can be no doubt that the judge will be able to adjust his orders as the file progresses. Asnoted in R. v.

La:[28] 28 I would add that even if the trial judge rules on the motion at an early stage of the trial and the motion is unsuccessful at that stage, itmay be renewed if there is a material change of circumstances. See R. v. Adams, (SCC), [1995] 4 S.C.R. 707, and R. v.Calder, (SCC), [1996] 1 S.C.R. 660. This would be the case if, subsequent to the unsuccessful application, the accusedis able to show a material change in the level of prejudice. [96] Thus, the judge was justified in rejecting the respondents' other requests. In the event of a material change, another motion maybe filed.

CONCLUSION [97] I would therefore dismiss the appeal. Before concluding, however, I would like to make a few comments. [98] The trial judge did not have much help. He was faced with an indictment and a volume of evidence of unequalled magnitude.According to the allegations of the prosecution, the trial concerned the large majority of the criminal activities of more than 150individuals over a period of nearly 20 years, arising after more than 70 large-scale police investigations.

Despite the singular nature ofthe trial, the prosecution presented no plan to ensure that the trials would be held under acceptable conditions. The judge had to getinvolved and compel the prosecutor to complete the disclosure of the evidence, respond to the multiple requests of the defence, definethe groups of accused and the charges for the trials to be held, and work with an insufficient number of hearing rooms adapted to thecircumstances. He requires support for his work.

As Hill J. has pointed out:[29] Criminal trial management, reasonably discharged, is only sustainable with committed support from courts of appeal. [99] The judge's analysis led to two findings: (1) despite all of the difficulties, there was no abuse of process or any othercircumstances giving rise to a complete stay of proceedings; (2) nevertheless, the circumstances surrounding the filing of the directindictment, the subsequent conduct of the proceedings, the lack of a well thought-out plan on the part of the prosecution to bringproceedings to completion, and the lack of adapted courtrooms caused unreasonable delays on the drug trafficking and criminalorganization offence charges. [100] The result must be borne in mind: more than 100 accused will still stand trial for murder and conspiracy to commit murder.

Theywill no longer face drug trafficking and criminal organization offence charges, however. On the other hand, 31 (or 29, excluding the twowho are absent) of these accused, those who were charged only with drug trafficking and criminal organization offences, are released. Iam unable to see how the Court's intervention can be justified in this context. In the circumstances, this was the price to pay to ensurethat the most important trials would be held within an acceptable time and that proceedings would not become a catastrophe. [101] To conclude, I note that, despite the

schedule established by the judge, no witness has yet been heard in the first two trials.Strangely, the disclosure of the evidence is not yet complete. The jury has been selected for one of the trials but not for the other, and thewitnesses will not being testifying before the end of spring in the first trial. It is still too early to assess the impact of this new delay onthe other upcoming trials. The Superior Court will determine the appropriate action. FRANÇOIS DOYON, J.A.

REASONS OF GAGNON, J.A. [ 102 ] After reading the reasons of my two colleagues, I find that the analysis put forward by Doyon, J.A. should prevail. I will explain. [ 103 ] In his reasons, Levesque J.A. outlines – and correctly, I might add – the importance of the objective seriousness of the crimes of drug trafficking and participation in the activities of a criminal organization. No one can deny that these are some of the most serious offences in the Criminal Code .

In this case, however, it is not necessary to consider the appropriateness of grading the criminal activity at issue on a scale of importance, since my colleague does not go so far as to state that the offences can be considered equal to the crimes of conspiracy to commit murder and murder. Also, I can see no error on the part of the trial judge when he states: [ translation ] “...

Although all the charges are important, it is especially necessary to the public interest for the counts of conspiracy to murder and first degree murder to be judged". [30] [ 104 ] Moreover, with regard to the notion of "judicial experience" to which Levesque, J.A. refers in his reasons, I find that the trial judge properly exercised his discretion by refusing to speculate on the possible strategies of the defence and simply applied this notion to the usual and orderly unfolding of criminal proceedings, regardless of the attitude of the accused. [ 105 ] The trial judge is also faulted for having erred by considering the overall situation of all of the persons accused without carrying out a prior, individual assessment of harm. [ 106 ] With respect for the contrary opinion, I cannot agree.

The judge stated that, for the accused concerned, there was a near-certainty that their trial would not be held within a reasonable time, and assessed this delay to be approximately six years.

In this context, I find it difficult to believe that an individual analysis of the situation of each of the accused would have led to disparate results indicating distinct harm or even a lack of harm. [ 107 ] The delays foreseen here, with a [ translation ] "high probability, if not a certainty" of a six-year wait, justified the inference of certain harm, and no further analysis was required. [ 108 ] In this case, I find that a well-informed public, aware of the stakes and the difficulties associated with holding a megatrial like the one at issue in this appeal, would easily agree that the interests of justice are better served by ensuring (for the moment) that the accused stand trial for the more serious crimes, even if that means that trials for crimes that are less important but that would require just as much effort and resources, time and energy, must be stayed. [ 109 ] Finally, I am unable to agree that the trial judge did not respect the exercise of prosecutorial discretion.

It is not necessary, for the purposes of this appeal, to define with any precision the restrictions on the prosecution in the management of its case and the establishment of its strategy. Suffice it to say that, as soon as charges are filed before a court of justice, the scope of prosecutorial discretion is considerably reduced as a result of the judge's inherent power to manage cases in the interests of justice and with respect for the fundamental rights of the accused.

This rule is justified in light of the obligation conferred on the judge to act as a guardian of the constitution and the rights that it confers on individuals. [31] [ 110 ] That is why judges may not remain passive witnesses of the attitude and strategies of the parties.

Their intervention is also required any time the constitutional rights of an accused are at play, whether to prevent an infringement or to limit the effects of such infringement as much as possible. [ 111 ] In short, while the trial judge admittedly arrived at a draconian solution, it must be recognized that he was faced with an exceptional situation. In my view, when analyzed in light of the circumstances of this case as a whole, I find that the judge arrived at a reasonable solution that does not require the intervention of this Court.

For these reasons, and primarily for those expressed by Doyon, J.A., I would dismiss the appeal. GUY GAGNON, J.A. REASONS OF LEVESQUE, J.A. [ 112 ] I have had the benefit of reading the reasons of my colleague Doyon, J.A. I am essentially in agreement with his remarks pertaining to the specific aspects of this case and the many difficulties facing the trial judge (the " judge ").

I also agree that his decision was correct on the issues of abuse of process and the quashing of the indictment. [ 113 ] With the greatest respect, however, my opinion differs with his with regard to the stay of proceedings ordered on counts 2 to 7, that is to say, on all of the charges relating to drug trafficking, conspiracy to traffic in drugs, and criminal organization offences. In fact, it is my opinion that the judge erred in law by finding some of the anticipated delays that he established to be unreasonable without having first considered certain factors relevant to the situation.

He also committed an error of law tantamount to an excess of jurisdiction by using what he termed a [ translation ] "case management power"

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