r v. HER, 2021 QCCA 1807

Bryant c. R. 2021 QCCA 1807 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-10-006927-188 , 500-10-006929-184 (500-73-003997-133, SEQ. 001, 004, 005) DATE: 1 st December 2021 CORAM: THE HONOURABLE GUY GAGNON, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A. N o : 500-10-006927-188 (500-73-003997-133, SEQ. 001, 005) ROBERT BRYANT LOUIS NAGY APPELLANTS – Petitioners v. HER MAJESTY THE QUEEN RESPONDENT – Respondent N o : 500-10-006929-184 (500-73-003997-133, SEQ. 004) MARCO MILAN APPELLANT – Petitioner v.

HER MAJESTY THE QUEEN RESPONDENT – Respondent JUDGMENT [ 1 ] In one file the appellants Bryant and Nagy appeal against a judgment of the motion judge in the Superior Court [1] and in another file the appellant Milan appeals against the same judgment, which dismissed the application of all three for a stay of proceedings under sections 11(

b) and 24(1) of the Charter. [2] The motion judge concluded that their right to trial within a reasonable time had not been violated. The appeals raise substantially similar issues and these reasons address both appeals. [ 2 ] On 7 June 2013 the appellants and three other persons were charged with conspiracy to import narcotics. On 6 September 2017 they were indicted on four counts of conspiracy, possession for the purpose of trafficking and trafficking cannabis and cannabis resin and cocaine. The application under

section 11(

b) was dismissed on 10 January 2018. The appellants were found guilty by a jury on 12 November 2018. The appellant Bryant was found guilty on all four counts, Nagy on two counts and Milan was found guilty on four counts. Sentences were imposed on 9 February 2019. [ 3 ] In the present case it is not necessary to conduct an actuarial inquest into the judge’s characterisation of the delays. For the hearing of the motion under

section 11(

b) a joint statement of facts was submitted. [3] It is not disputed that the total delay in the prosecution was 65.5 months.

After any necessary adjustments, it is also not disputed that the net delays for each appellant are virtually double the presumptive limit of thirty months set in Jordan . [4] For the purposes of the motion the judge attributed to all of the appellants the longest of the net delays, which was 58 months and 15 days. [ 4 ] The dates between the original charges and the end of the trial make clear that both of the appeals concern so-called “transitional” cases that began before and concluded after the decision of the Supreme Court in Jordan .

It is also clear that the net delays exceeded the guidelines in Morin [5] and Jordan . [ 5 ] The parties agree that the central issue in these appeals is whether the judge properly applied the “transitional exception”

recognised in Jordan and other cases. At the hearing the parties agreed that these appeals do not raise an issue concerning the calculationof the net delays or an issue whether the transitional exception applied. They agree that the central issue is whether the judge applied thetransitional exceptional appropriately in the circumstances of the case.

The appellants must demonstrate palpable and overriding error inthe judge’s assessment of the factual foundations for his conclusions according to the criteria in Morin.[6] [6] For the purposes of these appeals it is helpful to recall the observations of this court in Rice: [30] The Supreme Court has simplified the legal principles applicable in assessing whether the right to be tried in a reasonable timehas been respected.

On one hand, the Court let it be known that the analytical framework applied previously had led the courts intoinefficient exegesis of various factors, the consequence being that the analysis had become difficult to apply. With its new analyticalframework, the Supreme Court expressed the hope that an end would be put to inefficient, nit-picky micro-calculations: R. v. Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, para. 37, 111; R. v.

Vassell, 2016 SCC 26 , [2016] 1 S.C.R. 625, para. 3. [31] The challenge is significant for judges, and perhaps even more so for appellate judges from whom the Supreme Court requiresdeference towards “the expertise”, or might we say, the experience, of trial judges: R. v. Cody, 2017 SCC 31 para. 31, 64; R. v. Jordan,2016 SCC 27 , [2016] 1 S.C.R. 631, para. 71, 174. [32] The suggested approach is rigorous, but based on general concepts.

In determining whether there has been a violation, judgesmust respect the analytical framework or run the risk of seeing their decision reversed by an appellate court which discerns an error oflaw. [33] However, it falls to trial judges to evaluate each situation. Here, appellate courts must show deference. Appellate courts must notintervene unless it can be demonstrated that a judge erred in drawing an inference or came to a clearly wrong conclusion which isunsupported by the evidence or which is clearly unreasonable, or made some other palpable and overriding error that impacts the result:R. v.

Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6, para. 9. [34] Such limited intervention will avoid a return to the former context of unending gray areas into which the point of no return fadesand is lost. [35] A court of appeal must necessarily accord a trial judge the discretion to assess different situations. The judge knows the court inwhich that judge functions and how it works, its context and the players involved.

Among other things, a trial judge has specialknowledge of similar matters which have been the subject of neither an appeal nor any other particular analysis, but which nonethelessconstitute undeniably important guideposts.[7] *** [7] For about four years and two months between June 2013 and September 2017 there were several adjournments pro forma andseveral management conferences. A preliminary inquiry began on 21 September 2015 but was suspended on 13 November 2015 when aprosecution witness sought a writ of certiorari to quash a subpoena for his testimony.

The appellants were committed for trial on 11 July2017. [8] On 6 September 2017 the parties attempted to fix a trial for 23 October 2017 but counsel for the appellant Nagy was notavailable before 29 November 2017. The court deferred the trial for one year to 22 October 2018 because no earlier dates were availableto the court for a predicted duration of five weeks at trial. After a trial of three weeks between 22 October and 12 November 2018, theappellants were found guilty. All three filed notices of appeal before 12 December 2018.

On 23 February 2021 appellants Bryant andNagy filed motions for leave to appeal against the verdicts on mixed questions of law and fact. This court is seized of that motion. *** [9] The judge rejected the appellants’ submission that the police investigation was complex but not the proceedings before thecourts.

He concluded that the case as a whole was moderately complex not only because of the investigation but the volume of evidence(including the evidence tendered at the preliminary inquiry), expert evidence, the number of witnesses, the predicted length of the trial,the joint charges and the so-called “Carter exception” for hearsay among indicted co-conspirators. On this basis the judge considered thetransitional exception to the principles in Jordan.

He noted that the parties conducted the proceedings in a manner consistent with theprinciples previously applicable under Morin and noted that the appellants had not raised any issues of delay and made no demonstrationof prejudice. He also noted the problems of chronic delay in Montreal before Jordan. For these reasons he concluded that the transitionalexception applied and that the application for a stay should be dismissed. [10] In this court the appellants claim that the judge incorrectly applied the transitional exception.

They claim that the delays in thiscase exceeded the guidelines in Morin and that the judge failed to infer from those delays the prejudice caused to the appellants as aresult. They also claim that the judge’s characterisation of the case as moderately complex was mistaken because the prosecution wasrelatively straightforward even if the police investigation had been complex. *** [11] Given that the delays in this case that occurred after Jordan are consistent with the presumptive limit of thirty months,[8] thedelays that occurred before Jordan are of central importance.

As set out in Morin, the relevant factors before Jordan were (1) the lengthof delay; (2) waiver by the defence; (3) reasons for delay (inherent delay, the conduct of the parties, and institutional limitations); and(4) prejudice to the accused.[9] The Supreme Court stated as a general guide that for trial after a preliminary inquiry an appropriate upperrange would be fourteen (14) to eighteen (18) months.[10] Apart from the first three factors, the Court specified that a stay would noteasily be granted in the absence of prejudice that could be inferred from the length of delay demonstrated or shown by evidence.[11] [12] The Court in Morin sought to establish a qualitative approach to the assessment of delay and this same objective was sought,though by means of a different approach, in Jordan.

After a delay of thirty months for proceedings by preliminary inquiry and

indictment, the delay would be presumptively unreasonable. [12] Delay attributable to the defence would be subtracted from the total and a net delay over thirty months would be considered unreasonable unless the prosecution could demonstrate its due diligence, [13] discrete events extrinsic to the progress of the case or particular complexity intrinsic to the progress of a case.

The Court alleviated the rigour of this approach with respect to cases in progress before Jordan if the prosecution could show that the case had proceeded in a manner consistent with the approach in Morin or that the case was of moderate complexity in a jurisdiction affected by significant institutional delays. [14] The Court made clear that the prosecution will not succeed under this transitional exception if an analysis of delay in the case is manifestly inconsistent with the approach in Morin . [15] *** [ 13 ] The appellants submit that the judge erred in applying the transitional exception recognised in Jordan by misapplying the guidelines in Morin .

They claim that the judge failed to appreciate the diligence of the defence in advancing the case, mischaracterised the complexity of the case, and failed to appreciate the element of prejudice to the appellants caused by the delay. [ 14 ] It is clear that the judge applied the transitional exception in a manner that exceeded the guidelines in Morin but it does not necessarily follow that this is sufficient to qualify as error simply because they might wish for this court to substitute an alternative view of the relevant considerations.

At some length the judge reviewed those considerations and it cannot be argued that he failed to apply them or misapplied them in a manner that demonstrates palpable and overriding error. [ 15 ] On the issue of prejudice the judge is also clear. He says expressly that in their conduct of this case the appellants made no concrete demonstration of prejudice to them. In effect, the only foundation for such a submission would be that the element of prejudice is amply inferred from the passage of time in the progress of the case.

The judge concludes that the conduct of this case does not permit such an inference because the conduct of the appellants does not correspond to the prejudice that they claimed to have suffered. That does not exclude all possibilities of prejudice but in this case the only indication of prejudice could be found in living in the shadows of criminal charges.

The judge might well have found a greater measure of prejudice to the appellants but that is a possibility concerned with an assessment of the circumstances of the case as it evolved. [ 16 ] The appellants submit that the judge erred in the conclusion that the present case was moderately complex chiefly on the basis of the extensive police investigation.

The judgment makes clear, however, that the complexity of the investigation was only one factor that supported this conclusion. [16] The judge considered the evolution of the case from the beginning of judicial proceedings. [17] He noted the volume of evidence, the nature of the evidence at the preliminary inquiry and the length of the judgment at committal. He noted further the number of witnesses proposed, preliminary motions, multiple accused, and more than one complex legal issue concerning the admissibility of evidence.

It is of particular significance that at no point before the beginning of the trial was its anticipated length lowered from an estimate of five weeks. [ 17 ] In short, the appellants have not demonstrated palpable and overriding error that warrants the intervention of the Court.

FOR THESE REASONS THE COURT: [ 18 ] GRANTS the motion for leave to appeal in the file 500-10-006927-188; [ 19 ] DISMISSES the appeal in the file 500-10-006927-188; [ 20 ] DISMISSES the appeal in the file 500-10-006929-184; [ 21 ] ORDERS the Appellants to surrender to Correctional Authorities not later than 72 hours from the release of this judgment. GUY GAGNON, J.A. PATRICK HEALY, J.A. SUZANNE GAGNÉ, J.A.

Mtre Philippe Morneau SCHURMAN GRENIER MORNEAU For Robert Bryant Mtre Julia Blais-Quintal MERCIER LEDUC For Louis Nagy Mtre Michael Crystal For Marco Milan Mtre Carly Norris Mtre Simon Richard PUBLIC PROSECUTION SERVICE OF CANADA

For Her Majesty the Queen Date of hearing: 6 October 2021