2019 QCCA 576, 2019 QCCA 576

Javanmardi c. R. 2019 QCCA 576 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006396-178 (500-01-112702-144) MINUTES OF THE HEARING DATE: February 20, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. APPELLANT COUNSEL Mitra Javanmardi Mtre Isabel J. SCHURMAN, Ad. E (Schurman Grenier Strapatsas) RESPONDENT COUNSEL her MAJESTy the queen M tre Marie-Eve Mayer (Director of Criminal and Penal Prosecutions) On appeal from a judgment rejecting a motion for stay of proceedings for unreasonable delays rendered on February 24 2017, by the Honourable Justice Julie Riendeau of the Court of Quebec, District of Montreal.

DESCRIPTION : Conviction - Motion for stay of proceedings for unreasonable delays. Clerk: Stéphane Robinson Courtroom: Pierre-Basile-Mignault (RC.08) HEARING 14:04 Commencement of the hearing. 14:05 Submissions by Mtre Schurman. 14:50 Submissions by Mtre Mayer. 14:51 Commentary by the Court. 15:18 Reply by Mtre Schurman. 15:23 Recess of the hearing. 15:40 Resumption of the hearing. 15:40 BY THE COURT: Unanimous decision, the reasons for which will be filed at an ulterior time – see page 3. 15:41 Conclusion of the hearing. (

s) Stéphane Robinson Clerk BY THE COURT JUDGMENT [ 1 ] For the reasons which will be filed at a later time; THE COURT: [ 2 ] ALLOWS the appeal; [ 3 ] GRANTS the motion for stay of proceedings for unreasonable delays; [ 4 ] STATES that the proceedings should have been stayed by the trial Judge; [ 5 ] STAYS the proceedings. NICOLE DUVAL HESLER, C.J.Q.

MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. Javanmardi c. R. 2019 QCCA 576 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006396-178 (500-01-112702-144) DATE : March 5, 2019 CORAM: THE HONOURABLE NICOLE DUVAL HESLER, C.J.Q. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A. MITRA JAVANMARDI APPELLANT – Accused v.

HER MAJESTY THE QUEEN RESPONDENT – Prosecutrix WRITTEN REASONS FOR JUDGMENT RENDERED AT THE HEARING ON FEBRUARY 20, 2019 [1] At the end of the hearing of February 20, 2019, the Court rendered the following judgment: FOR REASONS TO FOLLOW, THE COURT : STATES that the proceedings should have been stayed by the trial judge; GRANTS the motion for a stay of proceedings for unreasonable delays; STAYS the proceedings. [2] These are the announced reasons for judgment. * [3] This appeal is from a judgment of the Court of Quebec, criminal and penal division (the Honourable Julie Riendeau) rendered on February 24, 2017, dismissing the appellant’s motion for stay of proceedings on account of unreasonable delays in violation of

section 11b) of the Canadian Charter of Rights and Freedoms : 2017 QCCQ 2654 . [4] Accused of multiple counts of failing to comply with the conditions of an undertaking entered into before a judge forbidding her, amongst other prohibitions, from counselling and otherwise practicing naturopathy, the appellant was found guilty. The verdicts are not under appeal. [5] The Court will make two preliminary remarks. First, in Jordan , the Supreme Court of Canada established two time limits for the trial to come to an end, one of 18 months for cases tried in the provincial court, and a second one of 30 months for cases in the

superior court or cases tried in the provincial court after a preliminary inquiry: 2016 SCC 27 , [2016] 1 S.C.R. 631, at para. 49.In a footnote, it specified that the 30-month ceiling applies to a trial in the provincial court after a preliminary inquiry or if the accusedre-elects a trial in the provincial court following a preliminary inquiry. [6] In this case, the appellant having re-elected early in the process, the question arises as to whether the 30-month ceiling has tobe shortened to 18, as well as to what is the impact of the Crown’s consent: see R. v.

D.M.S., 2016 NBCA 71, at para. 17, without adiscussion about the Crown’s consent. Be that as it may, the parties and the judge used the 18 months limit for the purpose of theapplication for a stay of proceedings and the Court will do the same, without expressing any definitive opinion on the issue. It would beunfair on appeal, on the Court’s own initiative, to decide whether the 30-month celling applies here. [7] Second, the parties agree that the total delay in the present case was, indeed, of 24.5 months long, after deductingapproximately 2.5 months attributed to the appellant.

As such, it is presumed unreasonable under Jordan. [8] Dealing with the merits of the appeal, we note that the trial judge found that the appellant had shown a lack of diligence in notadvising the prosecution earlier that she would challenge the admissibility of a seven-minute television broadcast. The trial judgeattributed four months to the defense as illegitimate conduct under the Jordan framework of analysis.

That television report consisted ofvarious interviews as well as images captured with a hidden camera showing the appellant in her capacity as naturopath interacting with afake patient. [9] That finding is erroneous. It is true that the opposition to the admissibility of this evidence consumed some trial time, and thatthe judge was right to point out an obligation of cooperation by the defense. No doubt that much more could be said on the topic. Thatdiscussion will have to wait because here, in any event, the delay was not caused solely by the conduct of the defence: see R. c.

Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, at para. 63. [10] In the circumstances, the Crown’s strategy to assume that the TV report constituted admissible evidence was, at best,imprudent. Indeed, it did not try to file this evidence, filing instead the complete tapes, which had been obtained partly because theappellant claimed early in the process that they should be disclosed as part of the constitutional obligations of the Crown. [11] The analysis of the trial judge does not deal with the conduct and choices of the prosecution.

There were obvious obstacles tofiling the seven-minute TV report into evidence, among which, hearsay and technical criteria concerning the admissibility of a video.The same is true for the complete tapes. Again, without deciding the obligation on the defence under Jordan, it has always been up to theopposite party to seek admissions or concessions in order to file otherwise problematic evidence. [12] The Crown cannot assume consent or admissions. The defence had no obligation to review and point the missteps in theCrown’s strategy.

Thus, the debate over the evidence was probable, if not inevitable, and it was for the Crown to allot sufficient time forthe presentation of its evidence. [13] In the circumstances, the trial judge was wrong to attribute the four-month delay to the defense and, as such, the Court has nowto examine whether the prosecution rebutted the presumed unreasonable delay of 24.5 months. [14] The appellant argues that the trial judge was in error in applying the transitional exceptional circumstances test.

The Courtagrees. [15] First, the Court acknowledges and agrees with the trial judge that the case was not moderately complex. The case against theappellant was as straightforward as a case can be.

Once the formalities of admitting the video into evidence were dealt with, there wasnot much to add. [16] Second, the reasoning of the trial judge is distorted by two determinative errors: accepting the failure of the prosecution to doanything about the first proposed trial date and the impact of the delay on an inferred and a real prejudice. [17] The transitional exception avoids an overly strict application of the new analytical framework to previously existing situations.The complexity of the matter, the duration of the period exceeding the Morin guidelines, the initiatives taken by the prosecution anddefence to move the case forward, and the prejudice suffered by the accused all play an important role in applying transitionalexceptional circumstances: R. c.

Rice, 2018 QCCA 198, para. 104-105; R. v. Williamson, 2016 SCC 28 , [2016] 1 S.C.R. 741,para. 26-30; R. v. Cody, 2017 SCC 31 , [2017] 1 S.C.R. 659, para. 74. [18] As the file stands, it is correct to say that the appellant did all she could, in a pre-Jordan era, to accelerate the proceedings. Theappellant promptly waived the preliminary inquiry and was available at the first proposed dates. [19] As the appellant points out, in February 2015, the Court proposed a trial the last week of August 2015. That proposal respectedthe Morin guidelines. But Crown counsel was simply unavailable. The reason is unknown.

That decision, taken without any verificationas to whether any other Crown prosecutor could be available for this straightforward case, had the immediate effect of postponing thetrial to the end of June of 2016. The prosecution lacked diligence even by pre-Jordan standards, when it was known that the nextavailable date was nearly one year away. [20] The Court again agrees with the appellant that the trial judge was manifestly wrong to say that the summer months andvacations are the reason why the trial could not proceed in August 2015. The Respondent quotes with approval this explanation found inthe judgment.

First, there is no real difference between the last week of August 2015 and the last week of June 2016 as far as “summermonths” are concerned. Second, if such a practice existed, it was part of the culture of complacency towards delays in the criminaljustice system that cannot be condoned, even retrospectively.

It may well happen as a fact, in a given case, that a trial cannot be held inthe summer, but as a matter of principle, justice does not stop in the summer and subpoenas are there to secure attendance of witnesses.The postponement created a delay almost double the guideline in Morin for, again, a straightforward case. It also exacerbated theprejudice to the appellant.

[21] Indeed, a long delay was not always, by itself, determinative in the pre-Jordan era but one would infer prejudice when thedelay, such as here, is long: R. v. Godin, 2009 SCC 26 , [2009] 2 S.C.R. 3. Prejudice is, of course, highly relevant because theconstitutional right is specifically aimed at preventing prejudice. But here, apart from an inferred prejudice, one must not lose sight of thefact that the appellant was under conditions that prevented her from acting as a naturopath, i.e. from earning a living. This prejudice wasreal and drastic.

Furthermore, although the appellant was acquitted on April 8, 2015, of the substantive offences that led to the breachesand to more restrictive conditions, the Crown contested any change regarding same, forcing the appellant to file a motion before theSuperior Court. Eventually, the conditions forbidding the appellant from counselling or otherwise practicing naturopathy were set aside,but only in April of 2016: 2016 QCCS 6898. [22] The jurisprudence does speak of prejudice because of the delay and prejudice caused by the accusations: see Béliveau c. R. 2016QCCA 1549, at para. 130 and Tremblay c. R. 2014 QCCA 690.

The distinction was not always easy to make. It is obvious, however, thatthe prejudice flowing from the restrictions on the capacity of the appellant to earn a living was proportionally worsened by the longdelays. The trial judge was in error, as there was no basis to distinguish between the two types of prejudice as she did in her judgment. [23] In the end, for all the above reasons, the total delay far exceeds the Morin guidelines because the prosecution’s unexplainedrefusal of the first trial date offered.

The prejudice which can be inferred from such a delay, has also been proven as real and important.The errors of the trial judge allows the intervention of this Court who is of the view that the Crown did not demonstrate that thetransitional exceptional circumstances apply. [24] That said, and for the foregoing reasons, the Court allowed the appeal at the hearing, stated that the proceedings should havebeen stayed by the trial judge, granted the motion for a stay of proceedings for unreasonable delays and stayed the proceedings. NICOLE DUVAL HESLER, C.J.Q. MARTIN VAUCLAIR, J.A. MARIE-JOSÉE HOGUE, J.A.

Mtre Isabel J. Schrman, Ad. E.SCHURMAN, GRENIER, STRAPATSASFor appellant Mtre Marie-Ève MayerDIRECTOR OF CRIMINAL AND PENAL PROSECUTIONSFor respondent Date of hearing: February 20, 2019